e-Lessons Learned

Is having an anti-privacy policy enough to monitor employer-issued Blackberries® and laptops?

According to the 9^th circuit, the answer is a NO!

In Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9^th 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 »

On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act, which is effective immediately. For the most part, the recent eDiscovery amendments to the California Code of Civil Procedure track the federal rules. For example, similar to the federal rules, the California rules use a broad definition of “electronically stored information,” allow requesting parties to inspect, copy and sample ESI, and require both parties to meet and confer regarding ESI discovery issues early in the litigation (in CA this must be done 45 days before a case management conference compared with 21 days under the federal rules).

However, the California amendments depart from the federal rules in a few distinct and important ways. Continue reading »