e-Lessons Learned

Everyone knows that the iPhone is a superior method of communication. It far surpasses all other computers, smart phones, company email accounts, Morse code, smoke signals and binary code communications. And most importantly, IT CANNOT BE ACCESSED BY YOUR BUSINESS PARTNER. In Gates v. Wheeler, 2010 Minn. App. Unpub. LEXIS 1136 (Minn. Ct. App. Nov. 23, 2010), the respondent may have been vindicated, but the problem was partly of his own making.

In Gates, Gates sued his business partner, Wheeler, for equitable relief concerning their jointly held LLC. The two were the sole partners and could not agree on business decisions. As they were deadlocked, Gates sued to have the court remedy the situation. Fairly typical case until Wheeler decided to cheat.

Wheeler, probably feeling he needed every advantage he could get, used his position as the server administrator to access Gates’ emails, both public and private, held on the company server. The court does not specify, but it appears that, although Gates used one email address ([email protected]), he may have kept separate folders of his emails, separated into business and personal matters.

Wheeler obtained emails containing correspondence between Gates and his wife; Gates’ personal financial information; passwords; pictures of Gates’ children (which Wheeler, showing just how mature he was, appended with disparaging captions); and correspondence between Gates and his attorney concerning the litigation at hand. Upon learning of the intrusion, Gates sought and obtained a temporary restraining order and injunction ordering a cessation of Wheeler’s access to Gates’ emails; the preservation of the evidence for later use at trial; a complete accounting of all the emails intercepted; and Wheeler not to disseminate or use any confidential, proprietary, or privileged information obtained.

Wheeler appealed this decision citing the lack of an underlying complaint relating to breach of privacy or duty concerning the obtaining of the emails. The appellate court found the TRO and Injunction to be appropriate, stating, “the district court issued a temporary injunction in order to regulate what are essentially dubious discovery tactics used during litigation involving the complaint.” The court found that the authority to regulate discovery matters grants to court latitude to issue injunctions and orders relating to those discovery matters.

The appellate court further found that, given Gates’ division of his emails into personal and private, indicates and expectation of privacy concerning those emails, but other courts vary in their view of privacy in employer provided email access. The spectrum of opinion varies from no expectation of privacy to privacy in personal web based accounts accessed through company servers to privacy when absent a clear company policy to the contrary.

Though there were no sanctions ordered as a result of Wheeler’s conduct, he was ordered to pay Gates’ attorney fees for the TRO, Injunction, and appeal, though the amount to be paid was not specified.

Although Gates was legally right in his expectation of privacy, some damage was almost certainly irreparable as a result of Wheeler’s access to his email. This damage could have been avoided if Gates had not conducted private business on his company’s computer system. An ounce of prevention goes a long way. Gmail is free and I feel secure in presuming that as a partner in a business such as this Gates had a smartphone with email and web access. If he kept his personal communications off of the company server, none of this would have happened.

Further, while all of the rulings were in Gates’ favor and he certainly, according to the court, had an expectation of privacy, there are always going to be people who will not play by the rules. The bottom line is that you have to protect yourself. Do not put anything on the company’s system that you want kept private. Better yet, get an iPhone.

Eric is a third year student at Seton Hall University School of Law. He received his BA from the University of Pittsburgh. He is a former U.S. Army Paratrooper, having served in Afghanistan and Iraq with the 82^nd Airborne Division.

Article posted on February 20, 2011 at 5:23 AM |              More... 
Tagged as: Discoverability, Good Faith, Legal Hold/Preservation, Privilege, Work-Product Doctrine.
View more articles implicating: Employees, In-House Counsel, Outside Counsel, Owners/Executives, Upper Management
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