e-Lessons Learned

Authored By: Sheetal Patel

Citation: Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006).

Employee/Employer Implicated: Information Technology Manager

e-Lesson Learned: If a company wishes to read an employee’s emails to his attorney sent through his personal Yahoo e-mail account through the Internet, albeit on a company-provided laptop, it must clearly tell the employee that: (1) all such e-mails are stored on the hard disk of the company’s computer in a temporary file, and (2) the company expressly reserves the right to retrieve and read such files.

Authored By: Tanya Basu

Citation: State v. Voorheis, 844 A.2d 794 (Vt. 2004)

Employee/Employer Implicated: A (Perverted) Defendant

e-Lesson Learned: Instant messaging, or IM, may provide realtime convenience and conferencing capabilities, but it creates a written business record that may be subpoenaed and used as evidence in litigation or regulatory investigations.

Authored By: Tim Cedrone

Citation: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, 2008 U.S. Dist. LEXIS 99511 (D.D.C. 2008)

Employee/Employer Implicated: Leader of the Free World (i.e., Executive Office of the President); other government agencies; information technology managers

e-Lesson Learned: Not all records management systems are created equal. Electronic records management systems often appear to be very thorough in their cataloging, storing, and retention of electronic information, such as emails. However, when certain federal statutes set specific record retention requirements which must be followed by government agencies, the records management system currently in place may not satisfy the statutory requirements.

Authored By: Daniel J. Ross

Citation: Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

Employee/Employer Implicated: In-house counsel and retained attorneys, as well as anyone involved in the oversight of legal action or proceedings

e-Lesson Learned: Make sure that your company has a clear case review and discovery protocol to ensure that attorneys working for you have the proper guidance. If you are involved at any level of the litigation process, from in-house counsel to lead trial attorney to junior associate, you are always responsible to act ethically in the work that you do for your company.

Authored By: Daniel J. Ross

Citation: Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

Employee/Employer Implicated: Everyone, from management to individual employees to in-house counsel to independent contractors

e-Lesson Learned: During discovery, make sure you and your employees give attorneys complete access to company email records, guiding them towards the accounts of relevant employees and offering helpful search terms that relate to the matter at hand.

Authored By: Frank Gonnello, Jr.

Citation: Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)

Employee/Employer Implicated: Owner/Executive

e-Lesson Learned: Make all reasonable efforts to preserve relevant data for pending or reasonably anticipated litigation, and if you can’t, be prepared to explain why. This includes having a data management protocol in place for managing the routine maintenance and deletion of data, stopping automated maintenance mechanisms and hiring experts to handle the preservation of relevant data at first notice of potential litigation, and performing a thorough search of discoverable data on the first attempt.