The May/June 2011 issue of The California Psychologist includes a Special Legal Update from San Diego Senior Counsel David Leatherberry titled "Work Place Electronic Communication and the Shrinking Psychotherapist Patient Privilege." In the article, Mr. Leatherberry analyzes the recent California Court of Appeal decision in Holmes v. Petrovich Development Co. LLC and applies it to the therapist-patient setting. Based on the Holmes decision, Mr. Leatherberry advises that an employee's communications to a therapist may lose protection under the patient-therapist privilege when the communication is transmitted from a workplace device in which there can be no reasonable expectation of privacy.
Holmes addressed the issue of whether the attorney-client privilege applied to emails sent by a client to her attorney using the client's workplace computer. The employer's policy prohibited the use of company computers for personal email communications, and warned that the company reserved the right to monitor use, and inspect electronic files including email messages at any time. The employee had been specifically advised that employees using company computers to create or maintain personal information or messages were not afforded rights of privacy with respect to that information or those messages. The Court of Appeal upheld the trial court's decision, concluding that an individual can have no reasonable expectation of confidentiality when the electronic means used for the communication belongs to the employer. Therefore, emails sent by the employee to her attorney using her workplace computer were not privileged. Because the therapist-patient privilege similarly requires a confidential communication, the decision in Holmes is relevant to the psychotherapist-patient privilege.
Mr. Leatherberry cautions psychologists to review their policies regarding electronic communications and emphasize to their patients the potential implications for confidentiality when using employer-provided electronic devices.
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