Waiver

When Is An Employer Permitted To Monitor and Review An Employee’s Internet Activity and Usage?

On March 10, 20108, Marc Liebeskind began working at Rutgers Facilities Business Administration Department.  By March 28 of that year, Liebeskind was terminated for lacking the basic skill set needed to perform his job in addition to having a poor attitude while on the job. Liebeskind’s supervisors had suspected he was spending an unreasonable amount of time on non-work related activities on his work computer. Having doubts about Liebeskind’s work performance, his supervisors reviewed the browsing history on Liebeskind’s computer by using an application called IEHistoryView. It is important to note that this search only entailed browsing history, and there is no evidence that Liebeskind’s supervisors were granted any access to his personal or password-protected information and accounts. After his termination, Liebeskind filed suit against Rutgers University and his supervisors, claiming invasion of privacy, among other claims. On appeal, the New Jersey Superior Court Appellate Division affirmed the lower court’s ruling, which ruling struck down all claims that Liebeskind’s privacy was violated as a result of his supervisors’ investigating the browser history on his computer. The appellate court referenced the New Jersey Supreme Court’s Stengart ruling, which had set the precedent for an employer’s right to monitor employee Internet activity and usage. Closely followed in previous eLessons Learned posts, the 2010 Stengart ruling held that an employee’s email communication with her attorney, using a company-issued computer, but via a personal, password-protected email account was held to be protected by the attorney-client privilege. However, the court’s decision to uphold Stengart’s privacy was not intended to forbid employers from monitoring employees’ actions on company-issued computers or devices in the future. In Stengart, New Jersey’s highest court stated: “Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.” As noted in Liebeskind, Rutgers’ “Acceptable Use Policy for Computing and Information Technology Resources” was in effect during the time of Liebeskind’s employment. This policy expressly stated that an employee’s privacy “may be superseded by the University’s requirement to protect the integrity of information technology resources, the rights of all users and the property of the University.” Additionally, Rutgers University “[r]eserve[d] the right to examine material stored on or transmitted through its facilities.” Unlike the findings in Stengart, the court established that Liebeskind did not have a “reasonable expectation of privacy.” In addition, the court agreed that Rutgers had a “legitimate interest in monitoring and regulating plaintiff’s workplace computer.” All companies can learn from this case and the policies in place at Rutgers that protected its right to monitor and search an employee’s computer. One of the most important lessons to be learned here is the need for a written internet usage policy. At the very least, these written policies should mandate that employees are expected to use the Internet and their work issued computers for work related activities only. Additionally, the possible disciplinary actions for any violation of this policy should be made available to employees. As seen in in this case, the existence of an internet usage policy and the reserved right of a company to monitor its employee’s Internet activity is the key to eliminate an employee’s reasonable expectation of privacy.

Erasing Videotapes Can Be Dangerous for Everyone, Not Just Politicians!

In McCann v. Kennedy Univ. Hosp., Inc., the plaintiff Robert McCann sued Kennedy University Hospital, asking the court to sanction the hospital for intentionally or inadvertently destroying necessary videotapes.  The plaintiff contended that the videotapes contained an account of the defendant’s emergency room lobby on the night the plaintiff claims to have been mistreated by the defendant’s staff. The plaintiff argued that the defendant knew or should have known that the video tapes were discoverable material and that there was actual withholding or suppression of the videotapes, which constituted spoliation. On December 21, 2011, the plaintiff was transported to the hospital after suffering extreme rectal pain and trouble breathing. The Plaintiff claims to have been in excruciating pain while he was waiting to be seen by the hospital staff. He states that he was ignored and neglected for at least seven hours. During the time that he was at the hospital, the plaintiff claimed to have collapsed on the floor and was left lying on the floor for over ten minutes, while staff walked over him without offering assistance. McCann also claimed that when he was eventually seen by the hospital staff, they treated him in ways that made him feel humiliated and uncomfortable. The hospital allegedly refused to treat McCann because he did not have insurance. On December 23, 2011, the plaintiff sent an e-mail to Renae Alesczk, the assistant to the Senior Vice President of the Kennedy Health System, complaining about his experience at the hospital while also threatening to sue. A few hours after the email was received, Aron Berman, formerly employed as the defendant’s Director of Guest Relations and Service Improvement, forwarded the McCann’s e-mail to Kim Hoffman, the Corporate Director of Patient Safety. The defendant claimed to have conducted an internal investigation of the complaints at that time, and notified the plaintiff that his complaints were being addressed. The hospital staff then stated that the investigation showed that the hospital staff acted appropriately and managed the patient’s clinical care in a professional manner. So far, so good. However, the plaintiff’s attorneys requested videotapes of the emergency room lobby, which showed the plaintiff waiting without being treated by staff. The defendants claimed that there was no videotape footage because they did not have enough disc drive space to keep all their video footage and had already erased the footage from the night in question. The plaintiff argued that the defendants knew or should have known that the videotapes would be requested in discovery, and that the defendants should not have destroyed the videotapes. The plaintiff claimed such activity as obstruction of justice and an intentional spoliation of evidence. The defendants argued that the tapes only show the time period during which the patient was in the waiting room, and are irrelevant to the plaintiff’s complaints about the treatment by staff when he was seen in the hospital. The Third Circuit has adopted a four-factor test for evaluating spoliation claims, finding that spoliation occurs where: “(1) the evidence was in the party's control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was reasonably foreseeable to the party.” Here, there is no argument that the tapes were in the party’s control. The court found that the tapes were not relevant to the plaintiff’s claims and that the defendant did not have a duty to preserve the video tapes at issue.  Therefore, there had not been actual suppression or withholding of the evidence. The takeaway from this case is that the court found it was reasonable for the hospital to destroy the videotapes because the plaintiff’s claim was specifically in regard to his being treated while at the facility, NOT his experience while waiting in the lobby. However, to be safe, videotapes of the night in question should be preserved to avoid this kind of confusion. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated, cum laude, from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

When are Details of an Expert Analysis NOT Compelled?

Dover v. British Airways, PLC, involves a class action lawsuit where the plaintiffs alleged the airliner unlawfully imposed fuel surcharges on its frequent flyer program rewards flights.  The plaintiffs supported their claims with a regression analysis.  This statistical study, also known as the r-squared analysis, estimates the relationship between two variables and allegedly shows fuel surcharges were mostly unrelated to the changes of fuel prices.  British Airways served the plaintiffs with a request for all documents relating to the r-squared analysis.  However, that request was denied by Magistrate Judge Go, whose order was affirmed on appeal by District Judge Dearie. While the overarching issue is under what circumstances the details of an expert analysis will not be compelled during discovery, this case brings to light several additional sub-issues.  The defendants argued that the information, produced by a non-testifying expert, was not protectable work product and that any protection that may have attached was forfeited through inadvertent disclosure on two occasions. Tackling the latter issue, the plaintiffs’ first inadvertent disclosure occurred during the course of a 137-page document production.  More notably, the second inadvertent disclosure occurred during the course of the plaintiffs’ documents submission complying with the defendant’s request for metadata.  The plaintiffs inadvertently reproduced the unredacted version of a particular spreadsheet that contained experts’ names and calculations.  As this was the second of the two inadvertent disclosures, the court expressly acknowledged that the “plaintiffs should have been on notice with the first inadvertent disclosure that the spreadsheets contained protected information and should have carefully reviewed the spreadsheets before providing them to their vendor and producing them to defendant.”  But, under the stipulated protective order signed by both parties, a claw back provision recited that the inadvertent disclosure of any material that qualifies as protected information does not waive the privilege on privileged information.  The law with respect to such a protective order invokes the waiver of privilege only if production was completely reckless, and the court did not find completely reckless behavior in this instance.  Rather, the court simply found the plaintiffs were careless in twice disclosing a few rows and columns on two pages of a 34-page spreadsheet. Addressing the issue of the fact that the r-squared analysis was performed at the pre-filing stage by a non-testifying expert, both Magistrate Judge Go and District Judge Dearie paid particularly close attention to the underlying fairness at stake and addressed the issue of whether it was fair for plaintiffs to submit an expert analysis in their complaint—that survived a motion to dismiss—and then disclaim the analysis in the future.  Because the plaintiffs disclaimed future reliance on the analysis conducted by their consulting expert, Federal Rule of Civil Procedure 26(b)(4)(D) is invoked for its protection of the disclosure of information from non-testifying, consulting experts.  Under this rule, discovery is only permitted upon a showing that it is impracticable for the party to obtain facts or opinions on the same subject by other means.  Since extraordinary circumstances were not found, details relating to the analysis were not compelled. Although it may seem unfair, the r-squared analysis was not the reason the complaint survived the motion to dismiss; the court was required to proceed on the assumption that factual allegations are true even if their truth seems doubtful, and consideration of the attacks on the consulting expert’s analysis would not factor into assessing the complaint’s plausibility. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Another Reminder That Attorneys Are Responsible for the e-Discovery Behavior of Their Clients

In the summer of 2013, the Northern District of California conducted a hearing over a motion to compel discovery responses which stemmed from e-discovery disagreements.  The plaintiff was a corporate investor in the defendant pharmaceutical company developing bovine-derived oxygen therapeutics.  A corporate officer of the pharmaceutical company was also named a defendant.  The plaintiff alleged breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing.  In its reply, the defendants counterclaimed breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage. Discovery began when the plaintiff served interrogatories, requests for production, and requests for admission.  The defendant corporation submitted its responses two months past the deadline, failed to completely respond to the interrogatories, and submitted incomplete document production.  The plaintiff moved to compel full and complete responses, after which the defendants’ counsel failed to appear at the hearing.   The court granted the plaintiff’s motion and awarded the plaintiff $1,400.00 in sanctions.  Additionally, the plaintiff complained that the defendant officer’s responses were also incomplete and filed two weeks late. These disputes are governed by the discovery rules in the Federal Rules of Civil Procedure.  Rules 33 and 34 establish a 30-day response period for a party to serve its answers and applicable objections.  Additionally, Rule 33(b)(2) states that failure to timely respond to discovery requests generally constitutes a waiver of any objections to those requests.  Under Rule 37, a party may move to compel discover and if the court grants it the responding party must pay the moving party’s reasonable expenses incurred in making the motion. At oral argument, the plaintiff asserted the defendants only produced 121 emails, 109 of which were communications with the the Plaintiff.  The plaintiff alleged this lack of production raised the possibility of spoliation and boded ill for the document preservation efforts of the defendants.  The defendants’ counsel testified he gave instructions to his clients to produce the related documents; however, the court was not convinced.  The court cited Rule 26(g) which places an affirmative obligation on an attorney to ensure a client’s search for responsive documents and information is complete.  The previous submissions were clearly incomplete and it was the attorney’s responsibility to remedy them.  Furthermore, since the responses were late, all of the defendants’ objections were denied even though the court admitted the claims might be vague and overly-broad. The court used its discretion to modify the sanctions placed upon the defendants.  It set a new date for all remaining responsive documents to be submitted and if the new deadline was missed the Defendants would be forced to hire an e-discovery vendor.  Vendors can be very costly.  Furthermore, since the defendants’ failure to timely and fully respond was not justified, the court awarded $5,200.00 in additional attorney’s fees to the plaintiff.  While the defendants’ counsel was still held responsible, the court recognized that the defendants were also responsible for the delay and ordered the parties to split the cost of the sanction.  This illustrates the point that when discovery efforts are not taken seriously, both the client and the attorney can be on the hook for big expenses. George is a student at Seton Hall University School of Law (Class of 2014).  He is pursuing both the Health and Intellectual Property Concentrations and is especially interested in patent law.  He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively.  Presently, George works as a law clerk at Stone Law in Colts Neck, NJ, where he assists in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.

Want to Claim the Producing Party is Tardy? First, Agree on Protocol for Production of ESI.

The producing party in a discovery request can be tardy producing documents, while making numerous generalized objections in a response, and still not have waived the party’s right to valid objections under Fed. R. Civ. P. 26 or Fed. R. Civ. P. 34.

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Software Glitch Does Not Waive Privilege

In Datel Holdings Ltd. v. Microsoft Corp., the court was faced with a Motion by the Plaintiff to Compel the production of several document’s inadvertently produced by the Defendant and admitted into evidence at a deposition, that the Defendant now claims are protected by the attorney-client privilege. In this case, the Defendant produced several abbreviated versions of an email chain that did not contain the initial email message from in-house counsel to a non-lawyer program manager, although the following reply emails were entirely among non-lawyers, and discussed the results of computer testing and did not transmit legal advice.

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Federal Judge in Illinois Denies Media Group’s Motion to Intervene Under FRCP 24(b)

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

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When it comes to authentication challenges, raise it or waive it!

The New Jersey Superior Court Appellate Division affirmed a final restraining order (FRO) under the Prevention of Domestic Violence Act despite claims by the defendant that key documents submitted by the plaintiff were not properly authenticated and admitted into evidence.  In late 2007, plaintiff, Krinal Shah, filed for a temporary restraining order (TRO) against her husband, Mayur Karnik, alleging he threatened via email to strangle and throw her in a river.  She further alleged that three days later defendant emailed and threatened to kill them both if she filed for divorce.  Finally, plaintiff alleged defendant burned her arm the previous summer.  In response to these allegations, the court issued a TRO and scheduled a hearing for an FRO.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments; however, such technology does not always efficiently replace good old-fashioned human effort. For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user. Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work. The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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