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Attorney-Client Privilege

Are Email Communications Between You and Your Attorney, Sent From Your Company Computer, Protected By The Attorney-Client Privilege?

Short Answer: No

Analysis

 In a recent 2011 California appellate case, Holmes v. Petrovich Development Company, the plaintiff sued her former supervisor and the company for sexual harassment, retaliation, wrongful termination, invasion of privacy, and intentional infliction of emotional distress. During the case, the defendants attempted to use emails and faxes that the plaintiff had exchanged with her attorney while she was still employed by the defendants. The plaintiff argued that the communications were confidential communications with her attorney, and therefore they were protected by the attorney-client privilege. The trial court disagreed and the Plaintiff appealed. The Court of Appeals found that under the circumstances, the emails and faxes were not privileged.

The Court of Appeals stated that although a communication between an attorney and client does not lose its privileged status merely because it was sent by electronic means, the privilege is not absolute. The Court noted that the plaintiff had used the email and faxes from work after being told by the company that the email and faxes were only supposed to be used for company business, that they were not private, and that the company would randomly and periodically monitor to ensure compliance. Based on these warnings, the Court of Appeals found that the employee had no reasonable expectation of privacy, and her communications with her attorney were not “confidential communication between client and lawyer.” Thus, the attorney-client privilege did not apply.

Words of Caution: In short, if you are communicating with a lawyer, do not do so from your company’s computers, fax machines, cell phone, or any other technology that is owned by the company. Also, do not access web-based email from your company’s computers if those contain your attorney-client communications.

If you have questions, please contact Mark H. Wagner, Esq. at Mark@lasuperlawyers.com