## Facts

- Gina M. Holmes worked for Petrovich Development Company, LLC; Paul Petrovich was the company’s principal/manager.
- Holmes became pregnant and planned maternity leave; she alleged Petrovich made hostile comments about her pregnancy, leave, and commitment to work.
- Holmes resigned in August 2004; defendants characterized the departure as voluntary, while Holmes alleged constructive discharge and retaliation.
- The company maintained a written computer/email policy, acknowledged by Holmes, that:
  - limited computer and email use to company business and prohibited personal email;
  - warned the company would monitor use and could inspect all files and messages at any time; and
  - stated employees had no right of privacy in personal information or messages created or stored on company systems.
- While still employed, Holmes used her work computer and the company email system to email an attorney about potential legal action against the company and Petrovich.
- The company later retrieved the emails and used them in the litigation; Holmes objected that the emails were protected by the attorney–client privilege.

## Issues

1. Whether emails an employee sent to her attorney from an employer’s computer/email system, despite a clear no-personal-use and no-privacy/monitoring policy known to the employee, were “confidential communications” protected by the attorney–client privilege under California Evidence Code §§ 952 and 954 (considering § 917).
2. Whether accessing and using those emails supported a state constitutional privacy claim given the employer’s express no-privacy policy.
3. Whether the trial court erred in granting summary adjudication on Holmes’s discrimination/retaliation and wrongful termination claims and in trying the remaining claims to a defense verdict.

## Decision

- The Court of Appeal affirmed the judgment for defendants in full.
- The court held Holmes’s emails to her attorney sent through the employer’s system were not “confidential communications” under Evidence Code § 952 and therefore were not privileged under § 954.
- The court rejected Holmes’s privacy claim, finding no objectively reasonable expectation of privacy in light of the acknowledged policy.
- The court upheld summary adjudication against Holmes on discrimination/retaliation and wrongful termination and found no reversible instructional or evidentiary error at trial, including admission of the emails.

## Legal Principles

- Attorney–client privilege applies only to communications made “in confidence,” requiring a reasonable expectation that no unauthorized third party will access the content (Evid. Code § 952).
- Electronic transmission alone does not defeat privilege (Evid. Code § 917), but privilege does not attach when the sender knows the method used is subject to employer monitoring and inspection under an express no-privacy policy.
- An employee’s use of an employer-controlled, monitored email system in violation of a no-personal-use policy can defeat confidentiality where the employee has notice that messages may be accessed by the employer.
- A constitutional privacy claim requires an objectively reasonable expectation of privacy; an express, acknowledged policy stating there is no privacy interest in employer systems defeats that element.

## Conclusion

Because Holmes knowingly used an employer-monitored, no-privacy work email system to communicate with counsel, her messages were not confidential and were admissible; her related privacy and employment claims also failed, and the defense judgment was affirmed.


Holmes v. Petrovich Dev. Co., LLC, 191 Cal. App. 4th 1047, 119 Cal. Rptr. 3d 878 (Ct. App. 2011)