People, we have a new conflict. And I do love a good rumble.
This one’s between the regulatory requirements mandating employers maintain its employees email for a certain number of years, versus the 4th Amendment and the Stored Communications Act (which nobody has bothered to pay attention to anyway), which says that no one but the receiver or sender of the email can access it without permission of the sender.
In Quon vs. Arch Wireliness, the Ninth Circuit has ruled that an employee’s emails and text messages are off limits to the employer if stored on a third-party’s server.
Does this mean that today’s employer can pay to archive its employees’ email in order to remain in compliance with regulatory laws, but never be able to see or access those messages afterwards? Just keep paying the bills until the time clock runs out on the statute requiring their keep? Are emails off limits for discovery purposes in general for civil litigation?
This is sort of analogous to a garbage barge that is always out at sea, with no port to land in. Oooh.
Or the cost of storage is going to go up. I can see a spike in demand here.
Julie Wade
4 responses so far ↓
Johnette Hassell, Ph.D. // July 5, 2008 at 4:04 pm
There seems to be one non standard point here. The subject is text messages made on the City’s pagers that had a 25,000 character limit. Employees were told that their usage would not be audited if they paid the overage any time there was one. They had been paying the overages when they occurred.
The “bill collector” got tired of this role and conducted an audit, ostensibly to see if the 25,000 limit was sufficient. A major point in the decision was that the employees had a reasonable expectation of privacy because of the “no-audit-if-you-pay-overage” policy.
The real lesson here is the need for ESI policies that are monitored and kept up to date.
Benjamin Wright // July 8, 2008 at 2:44 pm
Julie: The Quon case may give employers incentive to broadcast multiple, repetitive privacy disclaimers. What do you think? –Ben http://hack-igations.blogspot.com/2008/06/employee-imtexte-mailvoicecomputerinter.html
werkingurl // July 16, 2008 at 10:19 pm
Benjamin, I don’t know how an employer can boilerplate away your constitutional and statutory rights. Hum…. I’m sure a blanket waiver will begin to appear in employer internet useage policies, but, I’ll have to check with an attorney on this, and think about this some more. Good comment!
Bookmarks about Discovery // October 31, 2008 at 1:00 pm
[...] – bookmarked by 1 members originally found by Greendayjobros4ever on 2008-10-14 e-discovery of email going out on a barge? http://werkingurl.wordpress.com/2008/07/05/e-discovery-of-email-going-out-on-a-barge/ – bookmarked [...]