No Attorney-Client Privilege For E-Mail Sent By Employee From Company Computer

In Holmes v. Petrovich Development Company, LLC, (— Cal.Rptr.3d —-, Cal. App. 3 Dist., January 13, 2011), a court of appeal considered whether an employee could state a claim for pregnancy-related harassment against her former employer and also whether e-mails sent by the employee from her employer’s computer to her attorney were protected by attorney-client privilege. The court of appeal held that the former employee could not state a claim for harassment because the employee could not show she was subjected to a hostile work environment and also that the e-mails were not protected by attorney-client privilege.


Petrovich Development Company (“Company”) hired Gina Holmes (“Holmes”) as an executive assistant in June 2004. Holmes read and signed Company’s employee handbook which spelled out Company’s policy governing computer usage and e-mail accounts. The handbook provides that Company’s “technology resources should be used only for company business and that employees are prohibited from sending or receiving personal e-mails.” Additionally, the handbook states that “‘[e]mployees who use the Company’s Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message.'” It further states, “‘E-mail is not private communication, because others may be able to read or access the messages. E-mail may be best regarded as a postcard rather than a sealed letter.” The Company reserved the right to “‘inspect all files or messages . . . at any time for any reason at its discretion'” and instructed ‘that it would periodically monitor its technology resources for compliance with the company’s policy.'”

As for Company’s policy regarding discrimination and harassment, the handbook provides that an employee who thinks he or she has been subjected to discrimination or harassment must immediately report it to Paul Petrovich (“Paul”) or Cheryl Petrovich (“Cheryl”), who is Company’s secretary and who also handles some human resources functions. The handbook instructs that if the employee is not comfortable reporting the conduct to Paul or Cheryl, the employee may report to Company’s controller.

In July 2004, Holmes informed Paul she was pregnant and that her due date was December 7, 2004. Paul stated that Holmes told him she planned to work up until her due date and then take six weeks for maternity leave. Holmes did not like her coworkers to ask her questions about her maternity leave. However, the coworkers stopped asking questions after Holmes asked them to stop. In early August, Paul sent an e-mail to Holmes informing her that they needed to determine who they were going to get to handle Holmes’ duties while she was on maternity leave. Paul stated, “My recollection from the email you sent me when you told me you were pregnant and in our subsequent conversations, you are due around December 7th and will be out six weeks.” Holmes responded to Paul that she estimated she would start maternity leave on November 15th and could possibly be out up to four months. Holmes also stated that another employee could cover most of her duties and they could hire a “temp” to cover the rest. Paul responded to Holmes with the following: “I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? Leslie is not and cannot cover your position, nor can a temp. That is an extreme hardship on me, my business and everybody else in the company. You have rights for sure and I am not going to do anything to violate the laws, but I feel taken advantage of and deceived for sure”

Holmes replied to Paul by stating that she told him about the pregnancy as soon as she received the results from her amniocentesis. She explained that because she was 39 years old, there was a chance there could be something “wrong” with her baby. If that was the case, she “had decided not to carry the baby to term.” She explained this was a very personal choice that she did not want to share with the people at work. Holmes stated she did not know if she could get past Paul’s statements about her honesty and that she was going home to gather her thoughts. Paul thought Holmes may be quitting so he forwarded Holmes’ e-mail to two people that handle human resource functions, Company’s in-house counsel, and the person in charge of payroll and employee files. Paul also told Holmes in an e-mail that he was not asking for her resignation.

At some point, Holmes learned Paul had forwarded her e-mail to other employees. Holmes used the Company’s computer to e-mail an attorney, Joanna Mendoza (“Mendoza”), and ask her for a referral to an attorney who specializes in labor law and pregnancy discrimination. Holmes told Mendoza that her boss said things to her that were upsetting and hurtful and that he had forwarded her e-mail to other employees. Holmes stated that she was officially working in a hostile work environment and needed to find out what rights and options she had. Holmes also forwarded some of Paul’s e-mails to Mendoza. Mendoza e-mailed Holmes and told her “she should delete their attorney-client communications from her work computer because her employer might claim a right to access it.” Mendoza suggested they meet for lunch the next week. After Holmes met Mendoza for lunch, Holmes e-mailed Paul and told him she had no alternative but to end her employment.

Holmes filed a lawsuit against Paul and the Company alleging sexual harassment, retaliation, wrongful termination, violation of her right to privacy, and intentional infliction of emotional distress. The trial court granted summary judgment in favor of Paul and the Company on Holmes’ claims of sexual harassment, retaliation, and wrongful termination. The trial court found the issues of whether the Company invaded Holmes’ privacy and whether her communications with her attorney were privileged should be submitted to the jury. After a trial on these remaining issues, a jury found in favor of Paul and the Company.


The court of appeal held the trial court did not err in granting summary judgment in favor of Paul and the Company. The Fair Employment and Housing Act (“FEHA”) makes sexual harassment unlawful, including harassment of an employee due to pregnancy. In order to prevail on a claim of hostile work environment sexual harassment, Holmes was required to show that she was subjected to conduct that was “sufficiently severe or pervasive to alter the conditions of . . . her employment and create an abusive work environment.” A sexually objectionable environment must not only be objectively offensive but also subjectively offensive. The court of appeal evaluated all of the circumstances and concluded there was “an absence of evidence from which a reasonable jury could objectively find that [Paul] created a hostile work environment for a reasonable pregnant woman.”

Holmes only worked for the Company for two months and during that time there was neither severe misconduct nor a pervasive pattern of harassment. Holmes’ coworkers stopped asking her questions about her pregnancy when she asked them to stop. The e-mails from Paul show only that he made critical comments about the stress of a pregnant women’s right to maternity leave on a small business. The court stated that it seems that “Holmes expects the FEHA to be a civility code” but it is not. Holmes’ harassment claim against Paul and the Company must fail because there is no repeated, routine, or generalized pattern of harassment. Paul’s conduct was not egregious and he provided a nondiscriminatory explanation for his conduct.

Holmes also failed to state a claim for constructive discharge. A plaintiff who fails to show the severe or pervasive harassment necessary to support his or her claim of a hostile work environment cannot “meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.” Holmes could also not state a claim for retaliation because there was no evidence that the Company took any adverse employment action against her. Holmes decided to quit her job even though Paul assured her that he wanted her to continue her employment with the Company.

Holmes asserted that the communications with her attorney were privileged and should not have been introduced at trial. Evidence Code section 954 provides that a client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” Evidence Code section 952 defines a confidential communication between a lawyer and client as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a 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.”

The court of appeal concluded that the e-mails Holmes sent to Mendoza concerning possible legal action against the Company and Paul did not constitute confidential communications within the meaning of section 952. The court reached this conclusion because Holmes used Company’s computer to transmit the e-mails even though (1) the Company told Holmes “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) Company had warned Holmes that it “would monitor its computers for compliance with this company policy and thus might ‘inspect all files and messages . . . at any time;'” and (3) Company had explicitly advised Holmes “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.'”

Evidence Code section 917, subsection b, provides, that “[a] 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.” The court noted that Holmes’ communications did not lose their character as privileged simply because they were sent via e-mail. The court found the communications are not privileged because “the e-mails sent via company computer under the circumstances of this case were 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.” Holmes use of Company’s computer to communicate with Mendoza, coupled with the fact that she knew that using the computer in this manner violated company policy and that her e-mail could be monitored, indicates she did not communicate in confidence within the meaning of section 952. As a result, her communications were not privileged.


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