Frequently Asked Questions
Q. What's the worst that can happen when corporate attorneys try to protect their employer, but can't see the risk?
A. In connection with GM's Ignition Switch debacle, GM's corporate attorneys couldn't see the risks, so they created a "word rug" to hide the truth of what its engineers were saying. In addition to 63 other words and phrases, GM's attorneys advised GM engineers to avoid using the following six:
Challenger, deathtrap, Hindenburg,
Kevorkianesque, Titanic and "you're toast."
Read "These Are The 69 Words GM Employees Were Forbidden From Using" by Sam Frizell, in Time. Published on May 17, 2014. To read the article, click here.
In paragraph 20 of the Consent Decree, GM was required to disavow what GM's attorneys had advised. And later, some of GM's corporate attorneys were fired.
That's the worst.
Q. Do we enable an invasion of privacy?
Introductory note: Readers are advised that Intraspexion is not entitled to practice law or give legal advice. Readers must NOT rely on any discussion of a legal issue without consulting with their own attorney.
A. No, not when the appropriate corporate policies in place. We are aware that the act of monitoring internal emails raises a significant privacy issue. While it is not our purpose to provide our clients (or potential clients) with legal advice on this or any other issue, we have considered the subject of privacy (in this context) at some length.
In Holmes v. Petrovich Dev. Co., LLC, 191 Cal. App. 4th 1047, 1068–71 (2011), the California Court of Appeal held that an employee had no expectation of privacy in the emails she sent to her attorney from a company computer because the company had a policy against using computers for personal reasons and the policy stated that the company could monitor all emails. The court in Holmes emphasized that the computer used to send the emails “belong[ed] to the [company],” that the company had a policy against using its computers for personal reasons, and that the employee was “aware of and agree[d] to these conditions.” Id. at 1068; see also id. at 1068–69 (“Holmes used her employer’s company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy.”).
But suppose that employee never reads or agrees to the “no privacy” policy or agrees to the policy but someone in authority undermines the policy by conduct; or that the company knows the employee is using a company device, e.g., a smart phone, for personal purposes, pays to use it, and the company does not enforce the policy. In such cases, Holmes may be held not to apply. See, e.g., Mintz v. Mark Bartelstein & Assoc., Inc., 885 F. Supp. 2d 987, 998 (2012).
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