Many companies now have policies that govern the use of electronic business systems, such as e-mail, for the personal business of employees. Some prohibit personal use entirely, but many allow for some amount of personal use as a convenience to their employees.
So what do some employees do? When they consider suing their employer for some perceived violation of their rights, they communicate with their attorneys using the company's e-mail system. That's right. They send what might be legally privileged communications over an e-mail system owned and controlled by their adversary. You would think that people – even people without a background in the law – would stop, think twice, and realize that this really isn't a great idea. But apparently that's not always the case.
Recently, in Holmes v. Petrovich Development Company, the California courts held that an employee who was consulting with counsel in connection with a pregnancy discrimination claim used a company system for privileged communications at her own risk.
[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer‚Äüs 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. By using the company‚Äüs 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, Holmes 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.” (Evid. Code, § 952.) Consequently, the communications were not privileged.
The law is much different in New Jersey. Here employees have some protection if they are incautious enough to communicate with counsel through an adversary's system. The main case is Stengart v. Loving Care Agency. The NJ Supreme Court opinion is here, and our post on the earlier Appellate Division opinion here. In a nutshell, under Stengart employers and their attorneys are prohibited from reading e-mails between employees and their lawyers.
The question is, Stengart notwithstanding, why would an employee take the foolish risk of compromising the protection provided by the attorney-client privilege by using her employer's e-mail system? After all, most everyone owns or has access to a personal computer, a wireless phone or Blackberry, on which secure communications can be sent.
When prospective plaintiffs come to see us, one of the first things that we tell them is not to use employer-provided equipment for anything: communications, note-taking, whatever. And yet, it is surprising how many have already done something like that.
So this is a quiet plea for all of you, who think that your workplace rights have been infringed, not to use your company's e-mail system to communicate with lawyers. Anything else will do: your own computer system, snail mail, telephone from home, dogsled, carrier pigeon . . . whatever. But for heaven's sake don't jeopardize your case by being careless or lazy and letting your adversary serve as your messenger.
There's legal, and then there's smart. Be smart.