Secret Email Surveillance…Not What the Rules of Civil Procedure Had in Mind

Secret Email Surveillance…Not What the Rules of Civil Procedure Had in Mind

As the Appellate Court in Minnesota aptly noted, the rules of civil procedure exist for a reason―they provide us with an orderly system of discovery.  Do not attempt to circumvent these rules.  Secret email surveillance is never a good idea.

This point was made very clear in Gates v. Wheeler.  Richard Gates and Matthew Wheeler were co-owners of RSR, which was a limited liability company in Minnesota.  Over time, the men’s relationship soured and this led to deadlock in their management of the company.  Clearly, the time arrived for their professional relationship to end.

Minnesota provides a statute for such situations, whereby the Court can step in and grant equitable relief.  Gates sued Wheeler and RSR under this statute, serving his complaint in March 2009.  At this time, Wheeler decided to take matters into his own hands…

Wheeler served as administrator for RSR’s computer server.  In March 2009, Wheeler contacted RSR’s IT contractor and arranged it so that Wheeler could view all of Gates’ emails without Gates’ knowledge.  Not only did Wheeler gain access to Gates’ stored emails, but he also began intercepting all of Gates’ new emails.

Wheeler viewed Gates’ personal and business emails, including correspondence with his wife, with his attorney, and with his accountant.  Wheeler gained access to emails listing Gates’ personal financial and password information, pictures of Gates’ children, and email reminders that Gates sent himself regarding litigation strategies.  Wheeler also shared this information with his lawyer with respect to Gates’ lawsuit.

Gates did not discover Wheeler’s secret surveillance until November 2009.  He immediately went to the Court and, as expected, the Court did not take kindly to Wheeler’s dubious discovery tactics.  The Court noted that co-owners of a small limited liability company have a duty to act in an honest, reasonable and fair manner with each other, which Wheeler certainly did not do here.

Specifically, the Court ordered a temporary injunction against Wheeler, forcing him to: (1) stop intercepting Gates’ emails; (2) produce all emails intercepted; (3) preserve any device used in connection with these emails; and (4) return all Gates’ information that was unlawfully obtained.

The Court said that there was likelihood that Gates would win his federal and state privacy claims against Wheeler, even though no such claims were set forth in the original complaint from March 2009.  One of these claims were the privacy tort of intrusion upon seclusion, for which the three necessary elements are: (1) an intrusion; (2) that is highly offensive; and (3) into some matter in which a person has a legitimate expectation of privacy.

The second element (being highly offensive) is judged by what the ordinary reasonable person would find highly offensive.  The Court decided that such a person would indeed find Wheeler’s acts highly offensive.

The Court also found the third element satisfied here, as Gates had a legitimate expectation of privacy in his company email account.  Courts across the country decide differently on this issue, but the Court here applied a four-factor test from the Southern District of New York to measure an employee’s expectation of privacy: (1) is there a company policy; (2) does the company monitor email use; (3) do third parties have a right of access to emails; and (4) whether the company notified the employee, or whether the employee knew about the use and monitoring policy.  Here, all of the factors weighed in Gates’ favor.  Moreover, the separation between personal and business emails here demonstrates that Gates expected privacy at least in his privacy emails.  This might be surprising since Wheeler was in fact the administrator for RSR’s email server.

In the end, the information Wheeler obtained from secret surveillance of Gates’ email account was not worth it.  Email surveillance is not uncommon, but make sure your company has a policy addressing the issue and that employees know about the policy.  Basically, there is no reason for email surveillance to be secret.  This is especially true during litigation, since discovery is the proper path to obtain information.

Comments (2):

  1. I agree secret e-mail surveillance is never a good thing. I am very surprised that the court did not impose a more severe sanction, as this presents fairly severe misconduct. Another thing the court did not address was the behavior of Wheeler’s attorney – did he or she not know how Wheeler obtained the information he passed on? Why did the attorney not act? This sounds like misconduct on the attorney’s side as well.

  2. Wow – this is great. Serious retribution for Gates. This surprises me though, as electronic privacy law is unacceptably lagging in the US. The laws protecting email privacy are usually hand-me-downs from wiretap statutes, if not derivatives of the wiretap statutes themselves.
    This case aside, the current practices of employers monitoring employee activity online is scary. Of course, a company must be able to protect itself from unproductive employees, availing trade secrets, or potential liability due to improper use, however, monitoring personal emails through surveillance in this day and age is unfair to an employee who is at a clear disadvantage in terms of notice and bargaining power.
    What makes matters worse is that people don’t seem to mind. Although surveys and studies have shown that privacy is still a prevailing concern amongst Americans, those same Americans don’t see a problem posting every detail of their lives online. But, I digress…

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