e-Lessons Learned

With some help from Leo Rosten, a magistrate judge orders defendant to shoulder the burden and expense of correcting its own malfeasance.

Background

The plaintiffs in this case were disabled individuals living in Washington D.C. and the Equal Rights Center (collectively “Plaintiffs”) who sued the Washington Metropolitan Area Transit Authority (“WMATA”) for alleged violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. Plaintiffs’ main complaint was that WMATA’s public transportation services for the disabled were materially inferior to those services available to the nondisabled. Plaintiffs asked for money damages and injunctive relief.

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This e-discovery case arose from Google’s search for a declaratory judgment holding that selling trademarks as a keyword is not trademark infringement. The selective preservation of documents and the questionable actions by a resigned CEO lead to this action by Google.

In this motion, Google asserted that American Blind & Window Factory, Inc. (“American Blind”) did not take sufficient measures to preserve, collect, and produce evidence. To support its claim, Google showed that no deposed employee or ex-employee of American Blind could recall being notified to preserve documents, e-mails, any other information that would be relevant in the ongoing litigation and some of these employees had deleted documents. Google also showed that e-mail was regularly used during the course of American Blind’s business and that American Blind was unable to produce all relevant e-mail to this litigation.

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At issue in this case was a corporation’s failure to comply with its duty to issue a litigation hold in the face of pending litigation. However, the corporation was ultimately not sanctioned for its failure to comply with its obligation because the plaintiff could not establish that the failure resulted in the spoliation of relevant evidence.

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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 »

You go to Starbucks and order a coffee. The barista makes you a plain, black coffee. But in reality, when you said “coffee,” you actually meant a grande half-caf, half-skim, iced triple-shot white chocolate mocha with one Splenda. You complain to the barista that you didn’t get what you ordered, only to find out that you got exactly what you requested: a coffee. Then you realize your mistake: you weren’t specific. Such was the problem with the plaintiff’s discovery request in D’Onofrio v. SFX Sports.

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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 »

Want to read employees’ personal Yahoo emails? Then tell them! (in Writing, of course)

The use of a personal e-mail account on an employer-issued computer presents challenges for both employers and employees. An employee who uses a web-based e-mail service to communicate with his lawyer does not waive attorney-client privilege in those emails just because they are automatically (and unbeknownst to him) copied to his company-owned laptop computer when he views them.

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According to The Washington Times, Chief Information Officer Vivek Kundra, is back on duty. Kundra was placed on a leave of absence from his position following a scandal that involved people he was connected to. The FBI is still conducting a formal investigation of his affiliates. The White House ensured the public that Kundra is not a target of the investigation and allowed him back to work.

Although the situation concerning Kundra has been cleared up, at least for now, it still shed negative publicity towards the Obama Administration. We have seen some of Obama’s candidates for top positions have to withdrawal for various scandals and illegal activities. Obama has referred to the withdrawals of his choices as “embarrassing” for him, as well as, his administration.

Looks like this situation turned out in his favor seeing as Kundra is still on the job. Check back with us to see what will happen next!

Sending personal e-mails from work might be less personal than you think.

The bankruptcy court for the Southern District of New York concluded in this case that the attorney-client privilege does not apply to a client’s communications with his personal attorney when (1) the client used his employer’s e-mail system to send the communications, and (2) the client could not reasonably have expected the communications to remain private. However, the court denied the trustee’s motion for summary judgment because it could not find as a matter of law that the debtor’s employees in this case held an unreasonable expectation of privacy when using their company’s e-mail system for personal matters.

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The Background:

Homayoun Ghassemi, Director of Hockey Marketing for Easton Sports, Inc., communicated with a competitor company, Warrior Lacrosse, Inc., about potential employment with Warrior. During the course of Ghassemi’s communications with Warrior, but before he informed Easton that he intended to leave the company and go to work for Warrior, Ghassemi accessed a number of Easton’s files.

Ghassemi used his personal Yahoo email account to send several electronic attachments of Easton files that he later downloaded onto his computer at Warrior. Furthermore, after submitting his resignation to Easton and on his last day on the Easton premises, Ghassemi created a CD that contained several of Easton’s files. A subsequent forensic inspection of Ghassemi’s Warrior computer uncovered that the CD had been “experienced” by the computer’s hard drive.

Easton began to suspect that Ghassemi had stolen trade secrets, and the company filed suit against Warrior.

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