Privacy Issues in the Workplace

documents. She also challenged a limiting instruction given to the jury by the trial judge which she claimed undermined her claim of invasion of privacy.

The Court of Appeal rejected all of Holmes' claims and affirmed the trial court judgment. The Court of Appeal concluded that by using the company computer and email system to send and receive emails with her attorney, Holmes lost the attorney-client privilege and any reasonable expectation of privacy. The Court explained that an attorney-client communication does not lose its privileged character solely because it is electronically communicated. However, “the e-mails sent via company computer under the circumstances of [the Holmes] 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 once again points to the need for employers to have comprehensive written and promulgated policies spelling out the terms and conditions of employee use of company computers and making it clear to employees that they have no expectation of privacy in anything they send or receive on company computers. 2. O THER T YPES OF “P RIVILEGED ” C OMMUNICATIONS S ENT T HROUGH W ORK E-M AIL Several cases in jurisdictions outside of California have examined whether other types of privileges attach to communications sent on work computers.

In re the Reserve Fund Securities and Derivative Litigation 478 A district court in New York looked at whether the marital privilege protected e-mail communications sent by an employee to his spouse through his employer’s e-mail system. The court held that the privilege did not apply and the communications were discoverable because the employee did not have a reasonable expectation of privacy in the communications. Although communications between spouses are presumed to be confidential, this presumption will be lost if the communication, “because of its nature or the circumstances under which it was made, was obviously not intended to be confidential.” 479 The court looked at whether the employee had a “reasonable expectation of privacy” in the e-mail communications made to his wife. If a reasonable expectation of privacy did not exist, the spouses could not have intended for the communications to be confidential and the marital privilege would not apply. In determining whether a “reasonable expectation of privacy” existed in e-mails transmitted through his employer’s e-mail system, the court applied the four- factor test in In re Asia Global Crossing, Ltd. 480 , which is:

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