In a decision likely to be quoted in television drama courtrooms and real ones alike, the Third Appellate District Court in Sacramento California upheld in a 3-0 ruling that a lower court’s decision to admit emails between the plaintiff and her attorney were not privileged because the plaintiff used her employer’s (the defendant) systems to send the emails, and a written policy was in place restricting the personal use of company computers and informing users that email communications could be monitored.

This ruling marks a new direction when compared to several other recent court cases. The Appellate Court found that the plaintiff had no expectation to privacy and highlighted three key points from the company’s written policies.

Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute “confidential communication between client and lawyer” within the meaning of Evidence Code section 952. This is so because Holmes used a computer of defendant company to send the  e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

The Court went on to clarify that just because someone might have access to the data that makes up a communication between client and attorney, such communication does not immediately lose its privileged status, stating…

An attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”

However, in light of the clear communication the company made to its employees regarding the use of corporate systems, the plaintiff had no reasonable expectation of privacy. Comparing the emails between plaintiff and attorney to a conversation in the open.

“akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. “

What we should all take away from this is a new appreciation for the importance of maintaining an up-to-date, written set of policies that include an Acceptable Use Policy, and that makes clear to all employees what is considered appropriate use of corporate systems, that the use of such systems may be monitored, and that the users have no expectation of privacy. This policy should be developed in cooperation with your Human Resources department, and legal counsel, to ensure that it meets the expectations of senior management and is in compliance with applicable laws in your jurisdiction.

The complete Court ruling can be found read here (external PDF.)