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Memo to Employees: When it comes to confidential communications, use PRIVATE email!
A recent case underscores the need to keep private communications private. In Holmes v. Petrovich Development Company, an employee used her employer’s computer and email system to communicate with her lawyer about a potential discrimination claim. The employer had made it clear that its equipment was to be used for company business, not personal matters, and had advised employees that use of company equipment was subject to monitoring by the employer.
When the woman sued, the company was allowed to introduce into evidence – over an objection based on the attorney-client privilege – an email the plaintiff had sent to her attorney. The court ruled that the communication was not “confidential” because it was sent out employer's equipment when the employee knew it could be monitored. The court said that by using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, the plaintiff did not communicate “in confidence” by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted. “Consequently,” concluded the justices, “the communications were not privileged.”
There is a simple lesson here: when it comes to private, confidential communications – especially those between lawyer and a client – use a private email account, and transmit the message on a personal computer, not one owned, controlled, and possibly monitored by your employer.
For your convenience, a copy of the Holmes decision is attached.
Our firm regularly represents employers and employees with respect to workplace issues, so if you have an issue in this area, feel free to give us a call.