Employee/Employer Implicated: Multinational businesses with affiliates and/or subsidiaries in Europe, Data controllers
e-Lesson Learned: Recently adopted guidelines clarify the result that occurs when an EU country’s e-discovery rules are at odds with American courts’ requirements.
E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally. Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop. The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions. This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company. What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary? Do they supply all of the e-discovery materials required by American courts? What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by French or British?
e-Lesson Learned: Simply instituting an anti-privacy policy is not enough to monitor employee communications. Employers need to ensure that its managers and supervisors are strictly enforcing the anti-privacy policy and not sending contradictory messages.
Is having an anti-privacy policy enough to monitor employer-issued Blackberries® and laptops?
According to the 9th circuit, the answer is a NO!
In Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), the City of Ontario Police Department (“OPD”) had a formal policy governing city-owned computers and associated equipment that limited its use to City related business. It also warned that the users should have no expectation of privacy or confidentiality when using these resources. When the OPD issued pagers to its employees, it clarified that the policy also applied to the use of pagers. Under the OPD’s contract with its service provider, each pager was allotted 25,000 characters, after which it incurred overage charges.
Quon’s supervisor informally allowed employees to pay for their overages thereby avoiding the need to audit the messages. Accordingly, employees paid their share when they exceeded the character limit and avoided an audit. Quon’s repeated overages, however, frustrated the supervisor, who pursuant to the formal policy requested an audit to determine if the exceedances were due to city related business. The audit revealed that many of the messages were personal in nature and often sexually explicit. It also revealed that at least in one instance the pagers were used to undermine a narcotics investigation. Continue reading »
Bridgewater, NJ (April 23, 2010) – Fernando Pinguelo, a Member of Norris McLaughlin & Marcus, P.A., appeared as a guest on Fox News Channel’s live web show, The Strategy Room, hosted by Kimberly Guilfolye. Pinguelo was interviewed about today’s headlines featuring internet abuse, including the Security and Exchange Commission Office of Inspector General’s 5-year investigation that revealed SEC employees and contractors visiting porn sites and viewing sexually explicit pictures using government computers. Ms. Guilfoyle’s guests today also included Richard “Bo” Dietl and Dr. Kathryn Smerling.
The Strategy Room airs weekdays from 9 a.m. to 5 p.m. ET for a discussion of the day’s top stories, plus a variety of hour-long shows on topics like business, health, technology, and entertainment.
“Casual use of the internet in the workplace is on the rise. With up-to-the-minute Facebook statuses and Twitter ‘tweets,’ the use of company time for personal internet use has become common place. This has become so common that it is obvious employees don’t realize their actions can be tracked and saved. This new breaking story testifies to the fact that many workers don’t realize the implications of their actions online,” said Pinguelo.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
Citation: Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (slip opinion) (N.J. Super. Ct. L. Div. Feb. 5, 2009)
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Fool me once, shame on you. Fool me twice, more shame on you. Fool me three times and you are in some hot water! Regardless of whether you are (or represent) the plaintiff or the defendant, your discovery obligations are the same: Absent a valid, court-sanctioned objection, you must comply with your adversary’s discovery demands.
While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client. In one case, it may have cost one company $25 million.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems
So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching?Privacy! (And eDiscovery, of course)
“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems.
According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!
e-Lesson Learned: Failing to search for and timely produce documents in the format requested during discovery could cost you more than $25 million dollars.
Don’t take your discovery obligations lightly! When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary. Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance. Can you afford that?
Citation: Philip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009)
Employee/Employer Implicated: Upper Management
e-Lesson Learned: Data retention policies and procedures not only serve as backups to a system, but also can be effectively used to dictate the measures to be taken by employees to help preserve evidence and prevent spoliation claims.
Imagine you are an executive of a computer company that keeps experiencing defects in what is known as a floppy disk controller (FDC), a part in most personal computers. You decide that a technology needs to be developed to detect and resolve these defects. But someone else has already developed similar technology. However, even more alarming is that the computer company has a limited information management and data retention policy.
Dr. Philip Adams found himself in this precarious situation when he brought a patent infringement action against ASUSTEK Computer, Inc. and ASUS Computer International (collectively hereinafter “ASUS”) alleging spoliation of relevant evidence. Adams claimed that ASUS should be sanctioned due to the spoliation claims.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”
Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
“The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.”
-- Robert Ambrogi, Legal Tech Blogger and creator of LawSites
"Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others."
194 Comments | 
More... | 
Permalink
Tagged as: Chain of Custody, Computer Forensics Protocols, Discoverability, Good Faith, Spoliation
