Metropolitan News-Enterprise


Friday, January 14, 2011


Page 3


C.A.: Client’s Emails to Attorney From Work Computer Not Privileged


By SHERRI M. OKAMOTO, Staff Writer


Emails sent by a client to her attorney from a computer in her workplace regarding possible legal action against her employer were not protected by privilege, the Third District Court of Appeal yesterday ruled.

The panel explained that Gina Holmes had knowingly disclosed the information in her communications to a third party since she was aware that using the computer for personal email violated company policy and could be discovered by her employer due to its monitoring of email usage.

Retired Third District Presiding Justice Arthur G. Scotland, sitting by assignment, opined that Holmes’ actions “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 began working for Petrovich Development Company LLC in June 2004. That July, she emailed her boss, Paul Petrovich, informing him that she was pregnant and her baby was due in December.

Petrovich and Holmes then exchanged a series of emails discussing the need to find a replacement for her while she was on maternity leave. In these messages, Petrovich complained that her absence would pose a hardship for him and the company and that she had not told him of her condition sooner.

Holmes replied that she had waited to announce her pregnancy until she was past the first trimester and received the results of an amniocentesis since she thought “there was a chance that there could be something ‘wrong’ or ‘abnormal’ with the baby” due to her age  and prior miscarriages.

Petrovich forwarded his email exchanges with Holmes to the company employees who handled human resources functions and payroll, as well as in-house counsel, because he said he was concerned Holmes might be quitting, according to testimony.

Holmes subsequently resigned and filed suit against Petrovich  and the company for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress.

The defendants moved for summary judgment or adjudication on the ground that, as a matter of law, Holmes could not establish any of her causes of action. The trial court denied the motion for summary adjudication as to the causes of action for invasion of privacy and intentional infliction of emotional distress, finding that triable issues of fact existed regarding whether Petrovich’s dissemination of the emails between him and Holmes to other people in the office breached Holmes’s right to privacy and whether the disclosure was egregious and outrageous.

Summary adjudication was granted as to the remaining claims, and a defense verdict was returned as to the invasion of privacy and intentional infliction of emotional distress causes of action.

On appeal, Holmes contended the trial court erred in overruling her motion in limine to prevent defendants from introducing emails, which she had written to her attorney from a company computer, to show she did not suffer severe emotional distress and had filed her lawsuit at the urging of counsel.

Scotland, joined by Justices Harry Hull and M. Kathleen Butz, agreed with the trial court’s determination that the emails were not protected by the attorney-client privilege because they were not private. 

Since the employee handbook, which Holmes admitted reading and signing, “contained provisions clearly spelling out the policy concerning use of the company’s technology resources, such as computers and e-mail accounts,”  Scotland said, Holmes could have no reasonable expectation of privacy for emails sent from a company computer.

The justice added that Petrovich’s complaints and forwarding of the emails to others in the office did not establish severe misconduct or a pervasive pattern of harassment sufficient to support Holmes’ employment law claims.

The case is Holmes v. Petrovich Development Company, LLC, 11 S.O.S. 263.


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