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.
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: Einstein v. 357 LLC, 2009 WL 3813777 (N.Y. Sup. Oct 21, 2009)
Employee/Employer Implicated: Employees of the Corcoran Group, Real Estate Brokers, and a Director of IT
e-Lesson Learned: The importance of understanding, establishing, and complying with document preservation holds for the purposes of litigation is greater than ever before.
In Einstein, plaintiffs claimed that a Brooklyn condominium unit that they purchased was defective in its design and construction, and that defendants, including a real estate broker and several of its agents, fraudulently concealed water leak defects and induced plaintiffs to purchase the apartment. The plaintiffs obtained emails from co-defendants that were transmitted by the business defendant’s employees but never produced by the defendants during discovery.
The defendants failed to take reasonable measures to ensure that all business communications were preserved as per the legal hold notice instructions, which ultimately lead to spoliation of the documents and sanctions for acting grossly negligent. Through various motions and testimony of one the defendant’s IT director, it became clear that defendants relied on backup tapes in order to retrieve documents which were at issue, the reliance on which was flawed from the start. Continue reading »
Employee/Employer Implicated: Correctional officer and prison officials
e-Lesson Learned: Failure to preserve electronically stored information once the duty to preserve evidence has been triggered may lead to spoliation sanctions.
Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins? Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.
In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers. After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault. Defendants never provided the prisoner with the copy. Continue reading »
e-Lesson Learned: When the court orders your client to preserve data, don’t let employees wipe their BlackBerrys® before turning them in. A wiped BlackBerry® smartphone could translate into “bad faith” and might just induce a court to impose spoliation sanctions.
Suddenly find yourself at the wrong end of a trade secrets litigation? Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry® smartphones. Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.
The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys. The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions. But you might be thinking: “A BlackBerry wiped clean?Who cares! All the e-mails the other side could possibly want are readily available on the server.” This type of thinking could get you in trouble. Let’s see why.
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
Citation: William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)
Employee/Employer Implicated: Counsel, Third Parties, Document Custodians
e-Lesson Learned: When it comes to conducting searches of email and electronically stored information, New York District Courts expect counsel to cooperate and, with the input of document custodians, carefully develop keywords, which should then be quality control tested to assure accuracy and eliminate false positives.
Although most professionals and courts are still behind in the times when it comes to electronically stored information (ESI) and its discovery, the Southern District of New York recently sent a clear warning: Get with it! This district court cautions that counsel must cooperate with each other and get input from document custodians, to carefully develop and test keywords used to search email and other ESI.
In this March 2009 case stemming from a multi-million dollar construction dispute, the project owner agreed to produce all project-related emails and ESI from its non-party construction manager. The issue before the Court concerned the production of the construction manager’s emails from its server, and how to separate unrelated emails from project-related emails.
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!
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."
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Tagged as: Computer Forensics Protocols, Discoverability, Privacy
