Shanahan v. Superior Court, is an unpublished California opinion that furthers the story of confidential communications sent from a business computer. Shanahan v. Superior Court, 2010 Cal. App. Unpub. LEXIS 5756 (Cal. App. 2d Dist. July 21, 2010)
Privacy at Work…Literally and Figuratively
The United States Supreme Court wrestled with a reasonable expectation of privacy in text messages in City of Ontario v. Quon, 130 S. Ct. 2619 (U.S. 2010);
The California Supreme Court faced workplace privacy over hidden cameras in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (Cal. 2009); and
One Federal Court has even addressed the issue of the spousal privilege claimed over instant messages sent from an employer own computer. Gooden v. Ryan’s Rest. Group, Inc., 2006 U.S. Dist. LEXIS 74944 (W.D. Ky. Oct. 12, 2006).
Shanahan focused on confidential communications sent from a work computer to the Plaintiff’s deceased husband’s attorney.
The deceased husband had a “handshake deal” on the terms of his employment as the Defendant’s President & CEO.
The Defendants agreed for the agreement to be codified in writing.
The husband’s work computer was used to prepare communications with his attorneys and other potentially privileged documents. Shanahan at *3.
The husband died of cancer before any agreement was finalized.
The husband’s secretary searched his computer within days of his death. Id.
The Plaintiff brought a motion to compel the return of those communications and other documents. Shanahan at *1-3.
The Employee Handbook
The Defendants’ employee handbook expressly stated that work computers could be searched and that employees did not have a reasonable expectation of privacy in their computers. Shanahan at *5.
The Court found that the communications sent from the work computer were protected by the attorney-client privilege. Here is why:
1. The husband reasonably believed he could communicate with his lawyer, because the company provided him the computer and attorney to negotiate their business agreement.
2. The Defendant paid for the husband’s attorney.
3. Email negotiations took place during business hours and over the business email accounts.
Shanahan at *10-11.
The lower court found, and the Court of Appeals agreed, it would have been unreasonable for the Defendant to have expected the husband to communicate only with his attorney with his personal email account. Shanahan at *10-11.
The Court of Appeals held:
…the Bank’s policy of access, as expressed in the employee handbook and code of conduct, does not negate that expectation of confidentiality as it does not contain any express reference to waiving the attorney-client privilege. In other words, the facts in the instant case trump the Bank’s policy.
Shanahan at *11.
Bow Tie Thoughts
The lines between a person’s professional life and personal life can become easily blurred.
Employers allowing employees to use business SmartPhones for personal use can easily trigger analysis whether there is a reasonable expectation of privacy. Moreover, companies that encourage employees to leverage social networking to further business interest can also make the line between business and personal murky at best.
Privacy will be litigated often in the coming years. It will be fact sensitive and likely will result in situations where policies in the employee handbook get thrown out the window and other times where we will all scratch our heads.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.