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Last login: Thursday, February 3, 2011
Thanks for your excellent question. The employee used her company-provided e-mail service, not her personal, third-party provider account. In fact, the California Court of Appeal went out of its way to distinguish a 2010 decision of the New Jersey Supreme Court, Stengart v. Loving Care Agency, Inc. (N.J. 2010) 990 A.2d 650. In that case, the New Jersey high court held that attorney-client communications an employee sent from a company computer WERE privileged where: (1) the employee accessed a "personal web-based email account" from her employer's computer; (2) "the use of such an account was not clearly covered by the company's policy;" and (3) the e-mails between the New Jersey employee and her attorney "contained a standard hallmark warning that the communications were personal, confidential, attorney-client communications."
In the California Court of Appeal case I discussed, Holmes v. Petrovich Development Company, LLC, by contrast, the e-mail was sent from the employee's company-assigned e-mail account. Under those circumstances, it didn't matter that the employee used her private password to use the company computer and deleted the e-mails to her attorney after they were sent. As the Court of Appeal put it: "When [the employee] e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless [the employee] allowed others to have access to her e-mails and disclosed their content. Instead, she used [her employer's] computer, after being expressly advised this was a means that was not private and was accessible by [her boss], the very person about whom [the employee] contacted her lawyer and whom [the employee] sued. This is akin to consulting her attorney in one of [her employer's] conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [her boss] would be privileged."
Thanks for giving me the opportunity to clarify this important point. And thanks for listening.
February 3, 2011 at 12:57 p.m.
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