In an apparent setback for Internet and email privacy, this decision by Cali- fornia’s Third Appellate District Court held that an employee’s work email was not protected by the attorney–client privilege. Holmes v. Petrovich Dev. Co., LLC (pdf). If there is any upside to this case, the court very clearly based its decision to allow the emails into evidence on the company’s written policy, which explicitly stated that company email was not private. In other words, it is unknown whether the California court would have allowed the emails into evidence if the company did not have such a rigid privacy policy.

Last April, the U.S. Supreme Court held that a police officer had no expectation of privacy in personal text messages sent using the department’s pager device. See City of Ontario, Cal. v. Quon (pdf). Coincidentally, this case also came out of California, and the Court based its decision, again, on the police department’s clearly stated privacy policy.

By contrast, last March, the NJ Supreme Court held that an employee’s personal emails were private, despite the fact that the employee accessed those emails from a company computer (e.g., logging into a gmail account from work).

Last month, the Sixth Circuit U.S. Court of Appeals held that email in general is protected by the Fourth Amendment, and that the government could not obtain it from a third-party ISP without a warrant.

Needless to say, the law(s) regarding privacy in everyone’s email is very much in flux right now. To protect yourself as an employer, make sure that you have a clear and unambiguous policy con- cerning employee use of company computers, email servers, and even company time. Sometimes it’s best to consult with a privacy law attorney to write, rewrite, or review your existing policy and the necessary steps of implementation. To protect yourself as an employee, make sure that you know what your employer’s policy is regarding use of company computers, equipment, etc. This is one instance where what you don’t know can come back to bite you later.


Thanks to attorney David Edelstein for sending me this article.