Contributors

Jennifer Woo Burns

Of Counsel

In Militello v. VFARM 1509 (2023) 89 Cal. App. 5th 602, the plaintiff sued her fellow co-directors of a cannabis company. In that case, the plaintiff’s attorney attempted to use as evidence private emails between one of the defendants and the defendant’s spouse that had been sent through the company’s email system. The defendant challenged this and moved to disqualify the attorney on the ground that the emails were improperly introduced as they were protected by the spousal communications privilege. The Court of Appeal upheld the disqualification because the spouses had a reasonable expectation of privacy in the emails. Even though these emails were sent over the Company email network, the Court of Appeal based its decision on the fact that there was no showing that the Company had an express policy renouncing any confidentiality or expectation of privacy in emails sent through the Company network or prohibiting use of the Company network for personal communications. There was also no notification to employees that emails through the Company system could be monitored.

This case places the burden on employers to notify their employees of any policies countering privacy expectations or other interests regarding use of Company systems, otherwise, the employees could successfully argue that their messages or other content is private or otherwise protected. As such, employers should make sure they have implemented and communicated clear and comprehensive IT policies. These policies should confirm that all company systems, equipment, and devices are subject to monitoring and disavow any reasonable expectation of privacy regarding employee use and content/communications.