e-Lessons Learned

Just because e-discovery is involved does not mean we can disregard the rules applied to traditional discovery.   While we must adapt the way we approach discovery because of advancing technology and the decline of the paper-based world, we must not forget that the spirit behind the rules of discovery apply to all discovery, including e-discovery.

In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark.  This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff. Continue reading »

Suppose you’ve got a business.  Not just any business, however, but a state-of-the-art business.  Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner.  Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data.  You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email.  You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers.  You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side.  You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible.

Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit?  Perhaps even a completely bogus, frivolous lawsuit.  Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.   Continue reading »

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!

Continue reading »

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.  Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart 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.”

Continue reading »

The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel.  Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable.

Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes.  Inadvertently produced privileged documents do not automatically lose their privilege protection.  However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful.  Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.

Continue reading »

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.

Continue reading »

In 2001, Bonnie Van Alstyne alleged that her boss at Electronic Scriptorium Limited (“ELS”), Edward Leonard, sexually propositioned her.  Shortly after she declined those advances, she was terminated by ELS.  Van Alstyne then sued Leonard and ELS for (1) sexual harassment under the Equal Employment Opportunity Act, (2) unemployment benefits under the Virginia Employment Commission and (3) unpaid commissions. This blog isn’t about any of that.

ELS responded by filing its own charges in Virginia state court alleging business torts against Van Alstyne.  In a 2006 deposition, ELS used emails from Van Alstyne as exhibits.  The problem was that the emails were not from her business account, but her personal AOL account. (This is really the only problem in this case.  If Leonard would have stopped opening up his employees email accounts, I wouldn’t have to write anymore.  But since I already started…). Concerned that her privacy was invaded, Van Alstyne later deposed Leonard, who admitted to breaking in to her personal email account after she left ELS. Continue reading »

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.

Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.

Click here for full article.

Here is a quick summary of the case. Officer Quon worked for the Ontario Police Department in California. The pagers’ wireless text-messaging service provider, Arch Wireless, had previously stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon overran the 25,000 character allocation on his departmental pager. The first time it happened, Quon paid the overage charges, without any auditing of his text messages. After paying for the monthly overages 3-4 more times, Quon’s supervisor requested from Arch Wireless the prior month’s transcript to determine how much of the overage was from personal usage.

Quon’s department supervisor, and at least two other department employees, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Subsequently, Quon and several recipients of the messages, brought suit in the District Court of Central California. Quon appealed the district court’s holding, arguing that Arch Wireless had violated the Stored Communications Act (”SCA”) and their Fourth Amendment rights by producing Quon’s text messages to the police department. Continue reading »

Are employees who have their own offices different from employees in cubicles?

The Ninth Circuit wavered back and forth on this decision and eventually came to a compromise: an employee has a reasonable expectation of privacy in his own office, but if the employee knows that his computer was subject to monitoring by his employer and to disclosure to law enforcement, he lacks any Fourth Amendment expectation of privacy in his internet activity. Continue reading »