We've been waiting for the decision on Quon to clarify Constitutional issues of employee privacy while using an employer-supplied electronic device. Bottom line: by unanimous decision, the Supreme Court ruled that, under the facts of this case, the search was reasonable and Quon had no 4th Amendment expectation of privacy. I say "under the facts of this case" because the Court ruled on narrow grounds.
Justice Anthony Kennedy stated quite eloquently, "Because the search was motivated by a legitimate work related purpose,
and because it was not excessive in scope, the search was reasonable."
Thomas' English Muffins, that is. An executive of Thomas' (which is actually owned by a Mexican conglomerate) took a position at Hostess. Thomas' accused the exec of double-dealing for months and secreting away a dozen files onto a thumb drive – and got an injunction against him preventing him from taking the new job.
I like this story because it's a great example of a 'real-world'
scenario that triggers interesting e-discovery issues. You've got the usual stuff, of course, but it gets into privacy; specifically, how much protection may an executive with a confidentiality agreement expect when negotiating with the competition?
I suppose the exec might raise the "Twinkie Defense"…(dammit…I almost made it through without making a confection-related joke…)
This is my 200th post. Thanks to all the readers out there who've kept this thing going!
This is the bizarre story of a San Francisco network engineer, working for the Department of Technology, who faces two-five years in prison for withholding passwords from the City. I don't consider this a California story, though; this could happen anywhere. Follow the link for details, but I'm not posting this to debate his actions or motives (which are somewhat suspect), but to pose a question for the IT people out there; could you envision a legitimate situation where a superior demands a password and you're not sure whether you should surrender it? How about if there's litigation underway and an e-discovery attorney like myself requests access?
The reason I bring this up is, I was faced with this very scenario once, and although it may seem like the answer is easy, let me assure you, it isn't.
I was the head email consultant in Los Angeles for a world-wide conglomerate, but I reported directly to the domestic CIO, not the world-wide CIO, who was based in New York. Our CEO & CIO were called to New York for a meeting with the world-wide group. I received a call from my CIO's subordinate, an Executive Vice President, who informed me that our CEO was being fired, that I was not to ask any questions nor seek confirmation from anyone else, and that I was to immediately disable my CEO's password and supply it to him.
So, I'm being asked by an executive two-levels below the CEO to disable the CEO's password, on his word alone; nothing in writing. And if it so happens there are political games going on – which occurred frequently at the company – this would result in my firing, at minimum. "Trust me", he said.
Would you? I made my decision purely on the good faith of what I was being told, then
hoped I hadn't made the wrong choice. Luckily, I hadn't.
Unfortunately, the relief didn't last long. The former CEO sued the company for $66 million shortly thereafter. Yes, crazy things like this do happen…this is why E&O insurance exists.
I wrote about the Quon case back in December. It's a workplace-sexting-privacy case out of the 9th Circuit Court of Appeals.
If the Supreme Court upholds the 9th Circuit ruling, it would have a deleterious effect on the notion that, "As employers, we own it, so we can do what we want with it".
I'm wearing my criminal law hat this morning. The maker of Taser guns has developed a new digital video-capture system that allows a patrol officer to record real-time events using a camera device that fits over his or her ear.
Let's dispense with the obvious theoretical issues that can't easily be addressed in a blog post; misconduct, engaging/disengaging the system at inappropriate times, moral questions, etc. I'd like to focus on the technology itself.
The data is uploaded to a cloud, specifically the data warehouse evidence.com, so there are the usual security aspects to deal with, but considering I recently covered a criminal case where spoliation sanctions occurred because videotape of an arrest wasn't retained, systems of this type are likely to become more prevalent.
Of course, these devices don't come cheaply, but I learned something I didn't know; an officer-involved shooting may generate $250,000 to $300,000 in evidence collection costs. Maybe it makes a lot of sense for high-crime departments.
I don't think I need to state the obvious pros and cons (and I suppose in this case, 'cons' is a double-entendre), but if it were me, I'd prefer that a video recording was being created. It tends to keep people 'honest' – no matter which side of the gun you're on.
Mistakes…carelessness…sanctions. Month after month, I review a plethora of new decisions, looking for something unusual and interesting. Do I find usually find it? No. Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see? Sleight of hand, ignorance of the rules & stall tactics.
Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009): In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible". If that isn't enough, they also said, "…even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]
There are still people out there who seem to think that the federal rules themselves somehow determine what is – and isn't – reasonably accessible. In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.
Dead wrong. The court decides what these parameters are, based on the facts of the instant case.
Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009): The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message – even though there was no evidence of bad faith on the part of the plaintiff. Negligence vs. intent…
Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009): On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant. Parties are still betting against the house; but more and more often, the house wins.
At this point, I'm about ready to throw in the towel and start a "Social Networking Idiot of the Month" post. I try not to get into the habit of using strong verbiage like this too often, but really…
A drunk-driving 17-year-old was involved in a vehicle crash that killed her 20-year-old passenger.
"The Buffalo News has learned that Sullivan went to Florida a month after the crash and
posted a photo on her Facebook Web page captioned, "Drunk in Florida."" (italics/bold added).
The judge found this conduct troubling, sentenced her to six months in jail and stated that posting the Facebook photo was the reason.
No further comment is necessary, especially since it would contain more strong verbiage…
[As much as I don't like to overuse 'dark humor' for something as egregious as this case, nevertheless, I have to pose the question: How many of you clued-in to my 'half-a-brain' illustration?]
In light of the mechanical defect issues at Toyota, here are some of the other commercial slogans they probably wish they hadn't created:
The best built cars in the world.
I love what you do for me – Toyota!
And, irony fully present, my personal favorite:
Your new experience of motoring.
Ok, so maybe I'm still bitter because I tried to get Toyota to hire me as a consultant a few times last decade (they're in Torrance, which is fairly close to where I lived at the time) to no avail. Nah, it can't be that, since I drive a Toyota now – although thankfully, not one of the models subject to recall.
Maybe there was something to the claims made by Biller, after all. From my post September 4th, 2009:
"We won't know more details about this for a while, but it's one to
watch. My immediate thoughts are, 1) Plaintiff had better have some
convincing evidence to back up his claims and 2) Toyota had better hope
he doesn't."
Why do I think this is going to become a lead federal spoliation case somewhere down the road? [Sorry, I couldn't help myself. There had to be at least one automobile-related pun in here somewhere] Not only that, there's the cross-over to the attorney's ethical obligations that I discussed in my prior post.
Yes, I wanted to make a catchy closing sentence, but I've already used up my one-pun allocation.
I'm sure 'yule' (pardon the pun) welcome this opportunity to suspend Xmas shopping for a moment so you can read my last summary of interesting cases for the year. Folks, I can only say the latest crop borders on the bizarre. I have two civil and one criminal case for you.
"Plaintiff's computer forensics expert was allowed to testify regarding
steps taken by plaintiff to protect its electronically stored trade
secrets, and defendant's computer forensics expert was allowed to
provide his opinion concerning "intrinsic weaknesses" he perceived in
the reports of plaintiff's expert. However, both experts were barred
from offering opinions as to intent of the parties in handling
electronic information."
So, here's what happened. Both Plaintiff and Defendant attempted to bar the others' expert from testifying. Instead, the court allowed both experts to testify. Whoops! By the way, for the non-lawyers out there, it's entirely normal and customary – in certain instances – for experts to testify but not be allowed to express an opinion (conclusion). Depending upon the circumstances, the court will leave that to the jury.
Score one for good-faith. What attorney among us hasn't dealt with an adversary who attempts to use every technicality in the book to delay, deny, obfuscate, etc.? Of course, if you are one of those adversaries, shame on you, but in this case, the court saw right through it and enforced the 'spirit' of the agreement made between the parties.
"A request for court appointment of a computer forensics expert in a
motion by a defendant seeking review of his sentence was denied because
the defendant was not seeking to set aside a death sentence."
Like I said…bizarre…
Everyone, I wish you all the best! Please, take care out there this holiday season. Your continued support and feedback is what motivates me to keep on blogging!
An IT Executive Turned Privacy, Cyber Security & Litigation Attorney and Consultant Shares his Personal Insights.
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We've been waiting for the decision on Quon to clarify Constitutional issues of employee privacy while using an employer-supplied electronic device. Bottom line: by unanimous decision, the Supreme Court ruled that, under the facts of this case, the search was reasonable and Quon had no 4th Amendment expectation of privacy. I say "under the facts of this case" because the Court ruled on narrow grounds.
