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.
Dead men tell no tales, but their bodies provide enough evidence to paint a graphic picture. The same is true of deleted files on a computer. Missing files can carry the inference that the evidence was only destroyed because it would have been damaging to the party responsible.
In Paris Business Products, Inc. v. Genisis Technologies, LLC (“Paris”), Genisis Technologies, LLC, (“Genisis”) was subject to a discovery order requiring it to preserve all relevant data on company-owned computer hard drives. Despite this order, Genisis’ executive officers allegedly were responsible for: (1) deleting the company hard drives by reformatting them; and (2) physically removing and destroying some hard drives. Continue reading »
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.
e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!
The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.
Citation: Optowave Co., Ltd v. Nikitin, No. 6:05-cv-1083-Orl-22DAB (D. Fla. Filed Nov. 7, 2006)
Employee/Employer Implicated: Owner/Executives
e-Lesson Learned: After being placed on notice of a possible lawsuit, don’t destroy potentially relevant evidence by reformatting employee hard drives.
Tech-savvy business owner Dmitri Nikitin received a judicial tongue-lashing and an adverse inference instruction after he destroyed emailspotentially relevant to a pending lawsuit brought by a Korean corporation. Not buying Nikitin’s “hackers” defense, the Court said that Plaintiff Optowave was entitled to an adverse jury instruction at trial against Nikitin’s company Precision Technology Group. “This sanction,” the Judge wrote, “will serve to cure the unacceptable actions of Nikitin, while allowing the case to be decided on the merits.”
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!
Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. CompareStengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) withStengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted by the New Jersey Supreme Court and decision pending).
The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”
Increasingly, our society devotes a lot of time and energy to the use of smartphones. Whether it is a BlackBerry or an iPhone, it is the craze, and many now feel that they need to access their emails from the palm of their hands. And the corporate world is no different. Executives spend as much time focusing on the best ways to read emails, send and receive instant messages, and access the Web as the rest of us.
However, executives (and the corporations they work for) who use company intranets, also need to worry about the possibility of unintentional data distribution — meaning they should concern themselves with the fact that confidential information may be disseminated unintentionally or unexpectedly to the public. Continue reading »
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."
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Tagged as: Chain of Custody, Computer Forensics Protocols, Discoverability, Good Faith, Spoliation
