A recent California appellate court case reinforces the need for employers to have a clear and enforceable policy regarding the ability to review employees’ work emails.  In Militello v. VFARM 1509 [1], the plaintiff, Shauneen Militello, sued several fellow co-owners of a cannabis manufacturing and distribution company.  One of the defendants, Ann Lawrence, asked the court to “disqualify” (remove from the case) Militello’s attorney, arguing that Militello had improperly obtained private emails between Lawrence and her husband that were sent on the company’s email network, which Militello then provided to her attorney.  Her attorney, in turn, attempted to use the “private” emails in the litigation in violation of the spousal communications privilege (the privilege against disclosure of private communications between spouses).

The trial court disqualified Militello’s attorney and the Court of Appeal agreed.  The Court of Appeal ruled that private emails sent on a company computer network could not be used against the user where the user had a “reasonable expectation of privacy” with respect to personal emails sent over the company network.  Importantly, the court noted that there was “no evidence [the company] had a policy of monitoring individual email accounts—there was no [] company handbook with a policy prohibiting [employee] from using her [company] email account for personal communications or indicating her account would be monitored to ensure compliance with that restriction—let alone that [employee] had agreed to such a policy.”

This latest case underscores the need for employers to have a clear, written policy, countersigned or otherwise acknowledged by the employees, concerning electronic asset usage.  At a minimum, the policy should state that the employer can monitor employees’ email communications and all activity on work computers or devices.  The policy should also indicate that the employees have no reasonable expectation of privacy in their email communications or other digital/online activities while using company email, computers or other devices.

This is yet another cautionary tale for California employers but one which is fairly easy to address. Employers who have questions about this recent decision or employment laws in general should contact Navigato & Battin.

[1] Militello v. VFARM 1509 (2023) 89 Cal.App.5th 602 [306 Cal.Rptr.3d 200].