Work Email and the Attorney-Client Privilege Do Not Mix

An appeals court in California recently decided that emails sent by an employee from her work email address to her attorney are not protected by the attorney-client privilege. In the case of Holmes v. Petrovich Development Company, LLC, an employee sued her employer for wrongful termination. Prior to filing her lawsuit, she had exchanged emails with her attorney, using her office email account. The employer used the emails in its defense, and the employee objected, claiming that they were protected by attorney-client privilege.

The Court disagreed and found that the emails were not protected by the privilege.  The court relied on the fact that the employer’s handbook expressly stated that an employee’s emails might be monitored. Such a warning, the Court concluded, made the employee’s emails akin a conversation held in the company’s conference room, with the door open, speaking in a loud voice. The California Court’s decision is in keeping with the Supreme Court’s 2010 decision in City of Ontario v. Quon, in which the Court held that an employee did not have an expectation of privacy in his text messages, sent using an employer-provided pager. This case, however, takes Quon to its logical conclusion, holding that in the absence of a reasonable expectation of privacy, the attorney-client privilege cannot attach.

As Delaware employers should know, they are required by statute to inform employees prior to monitoring an employee’s telephone, email, or internet use. 19 Del. C. § 705. Thus, under the California Court’s logic, any Delaware employee who has received notice of email monitoring under Delaware law has waived the attorney-client privilege as to any emails exchanged with the employee’s attorney, using his or her work email account. It is important to remember that the Delaware courts have not ruled on the issue of attorney-client privilege for work emails. However, this case is a valuable reminder that electronic communications are rarely as private as they appear, and we should all conduct ourselves accordingly.