Authored By: Frank Gonnello, Jr.

Citation: US v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)

Employee/Employer Implicated: Law enforcement officers and civillians.

e-Lesson Learned: Whether it's "pervasive mass surveillance of the public by law enforcement agents" or just a more efficient means to an otherwise-legal end, the question of whether warrantless GPS tracking violates the Fourth Amendment rights to a suspect's privacy will be answered soon by the US Supreme Court in U.S. v. Jones.

Tweet This: Supreme Court Deciding Whether to Occupy 1984 -- is your privacy at stake?

On November 8, the United States Supreme Court heard oral arguments for its review of U.S. v. Jones (U.S. v. Maynard), the Fourth Amendment-focused case which has garnered much attention in the news over the past few weeks. The issue before the Court is whether the warrantless use of a GPS tracking device by the police violates a defendant's Fourth Amendment rights. However the implications of this decision can affect our privacy in Orwellian proportions. If you haven't yet heard, U.S. v. Jones is a tale of two District of Columbia night club owners, Antoine Jones and Lawrence Maynard, who went on trial for conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. But while neither Jones nor Maynard deleted files, destroyed hard drives, nor compromised privileged electronic communications, their case has caught the attention of our site because the trial court admitted evidence acquired by the warrantlessuse of a Global Positioning System (GPS) device to track Jones' movements continuously for a month.

Authored By: Michael Tucker Jr.

Citation: In re TMI Litig., 193 F.3d 613 (3d Cir. 1999)

Employee/Employer Implicated: Plaintiffs’ Counsel

e-Lesson Learned: Continuing non-compliance with expert discovery deadlines can result in the loss of a large and important part of your case. This is especially true when a court sets a drop deadline after a party has repeatedly taken advantage of its leniency.

Tweet This: Court Goes Nuclear on Deadline Desperados

This case arises out of the nuclear reactor accident that occurred at the Three-Mile Island Power Plant on March 28, 1979. This 3rd Circuit decision was rendered more than 20 years after the incident and after a complicated procedural history that included multiple filings by thousands of plaintiffs in both state and federal court. Congressional amendment of a statute finally allowed all of the cases to be consolidated in federal court. The main issue decided on appeal was the district court’s exclusion of expert testimony, based on the gatekeeping standards of Daubert, which restricted plaintiffs’ ability to show that they were exposed to radiation sufficient to cause injury. The other issue on appeal was the award of sanctions for violations of pre-trial discovery requirements and orders. As this is an eDiscovery blog, I will be addressing the discovery and sanctions issues rather than the voluminous and complex scientific matters that arose in this nearly 200 page decision.

Authored By: Phil Ryan

Citation: Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.R.D. 223 (D. Md. Oct. 28, 2010)

Employee/Employer Implicated: Miscellaneous

e-Lesson Learned: When faced with objections to Rule 34 production requests, the proper response is to meet and confer with opposing counsel and then, if necessary, seek an order from the court. Parties should not resort to subpoenas to compel discover.

Tweet This: When faced with discovery objections, don’t put the subpoena-cart before the discovery-horses!

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce. No problem you think, I’ll just subpoena ‘em. WRONG. In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.

Authored By: S.S.K.

Citation: Estate of Davis v. Spriggs, 2010 WL 4817348 (Delaware County Nov. 19, 2010)

Employee/Employer Implicated: Miscellaneous employees

e-Lesson Learned: Having an “Evidence Eliminator” program which destroys electronic data on a computer upon start-up can justify incidental deletion of evidence when your job involves sensitive information.

Tweet This: OH AppCt: It’s legal to destroy incriminating evidence on your computer! (Sometimes.)

Again with the scandalous sex tapes? Seriously? With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret. You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution. Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

Authored By: Phil G. Ryan

Citation: Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011)

Employee/Employer Implicated: Employees

e-Lesson Learned: Communications between an employee and her attorney on a company’s computer, in violation of the company’s computer policy, are discoverable by the employee’s employer because those communications are not communicated in confidence and, are therefore, not privileged.

Tweet This: Inside-Voices Only! If you’re going to talk poorly about your boss do not use the company computer!

They are always watching! Whether you’re emailing your kids, encouraging them to do their homework and chores before watching television, sending a message to this week’s fantasy football rival, rejecting his offer to trade his kicker for your star running back, or reaching out to your college roommates, seeking advice on how to pick up the girl at the local coffee shop, make no mistake, they are watching! When you agree to your company’s computer policy, the one that says you’ll use the employer issued device for work purposes only, you do more than just promise you will spend your time focused on your job. You give up your privacy. Those emails to your kid, the message in your fantasy league, and the note to your friends, are all fair game for your boss to read.

Authored By: Joscelyn

Citation: Stengart v. Loving Care Agency, Inc.

Employee/Employer Implicated: Employees and Employers Alike

e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.

Tweet This: Video eLessons: Privacy wins out in latest Stengart decision --> http://ellblog.com/?p=2059

This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.

Authored By: Fernando M. Pinguelo and Laura J. Tyson

Citation: Stengart v. Loving Care Agency, Inc.

Employee/Employer Implicated: Employees, Employers, In-House Counsel, Outside Counsel, EVERYONE!

e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!

Tweet This: Workplace Computer-use Policy vs. Private Employee Emails? PRIVACY prevails in New Jersey --> http://ellblog.com/?p=2055

(See also: Fernando M. Pinguelo, "New Jersey Supreme Court Rules That Employees Retain Privacy and Privilege of Attorney-Client Communications Made from Work," Digital Discovery & E-Evidence, Vol. 10 No. 5, The Bureau of National Affairs, Inc. (BNA) April 15, 2010.) The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.

Authored By: Sean McQuilkin

Citation: Clark v. State, 2009 WL 3319674 (Ind.)

Employee/Employer Implicated: Criminal Defendants

e-Lesson Learned: Don't post potentially incriminating statements or photographs on publicly available websites, especially if they are directly traceable back to you.

Tweet This: Dear Criminals, We Can Use the Internet, Too. Sincerely, Law Enforcement --> http://ellblog.com/?p=1977

All content that you put on the internet, whether you think it is private or not, is out in the open and can be accessed by anyone. Think about some of things you may have on your MySpace or Facebook pages, or may have posted on your blog or might have tweeted. Do you want your boss or the police or the courts to see them? If not, you’d be wise to avoid posting anything that could expose you to the wrath of authorities. In Clark v. State, police and prosecutors used statements on Ian Clark’s MySpace page to help convict him of first-degree murder. Granted, your dirty little secrets probably won’t end up as badly as Ian Clark’s, but why take any chances?

Authored By: Fernando M. Pinguelo

Citation: TBA

Employee/Employer Implicated: Employees and Employers Alike

e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems

Tweet This: All eyes on NJ as high court decides key issues implicating privacy, employer/ee relations, atty/client priv & eDisc- http://ellblog.com/?p=1925

So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching? Privacy! (And eDiscovery, of course) “It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems. According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!

Authored By: John Chao

Citation: Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)

Employee/Employer Implicated: Owners/Executives (CEO and Vice-Chairman)

e-Lesson Learned: Using an employer’s server to transmit personal, confidential emails is a bad idea.

Tweet This: If it’s personally confidential, don’t send it from work if you want to keep it private. --> http://ellblog.com/?p=1919

Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted by the New Jersey Supreme Court and decision pending). The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”