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eDiscoveryDaily

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

In Moore v. Miller, No.: 10-cv-651-JLK, 2013 (D. Colo. June 6, 2013), Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

In this case, the defendants filed a motion to enforce the court’s order to compel the plaintiff’s production of “writings related to his arrest, his tax records, and his employment records.” As part of those writings, the defendants asked for his Facebook records and activity log and documents he posted on his websites. The defendants claimed that the plaintiff did not comply because he only partially produced writings, including “‘an incomplete and highly-redacted printout of Plaintiff’s Facebook wall posts’” and he did not produce an activity log.

The plaintiff relied on his interpretation of “about his arrest” to narrow the scope of the order compelling production. The court remarked that narrowing the scope to this extent would “exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and his alleged physical and mental injuries.” Moreover, the court noted that the defendants’ request for Facebook information extended to “all of his missing Facebook posts” and the activity log.

The plaintiff argued that this expanded scope sought irrelevant evidence and would invade his privacy. But the court found the plaintiff’s allegations of physical injury and emotional distress warranted a more in-depth review of his social media account. His “Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).” Moreover, the plaintiff “reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.” {emphasis added}

Although the plaintiff requested that the data be reviewed in camera, the court found its protective order would protect the plaintiff’s privacy.

The court also granted the defendants’ motion for attorneys’ fees related to the motion, noting “how unfortunate it is that the parties’ differing interpretations about the scope of ordered discovery spawned a chain of hostile emails and ultimately the instant motion. Where the nature or scope of an Order is contested, the best course of action is for the disputing parties jointly to file a motion for clarification.” In addition, the motion sought the defendant’s current address, tax returns, and employment history: “No party should have to resort to motion practice to obtain information as elemental as a party opponent’s address.”

So, what do you think?  Was the judge right to allow discovery of the plaintiff’s Facebook information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Big is the eDiscovery Market? Here’s all the Estimates in One Place – eDiscovery Trends

Rob Robinson’s Complex Discovery site is an excellent resource for discovery and general legal technology articles – his weekly top story digest is a terrific source for keeping tabs on the industry.  Now, Rob has created a compilation of various eDiscovery market estimates for the next several years to provide An eDiscovery Market Size Mashup for 2012 to 2017.

As Rob notes: “Taken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts and discussions over time, the following eDiscovery Market Size Mashup shares general market sizing estimates for both the software and service areas of the electronic discovery market for the years between 2012 and 2017.”

It includes a combined market view of software and services together, as well as a software-centric market view and a service-centric market view.  The highlights (based on the estimated from the compiled sources) are:

  • The eDiscovery Software and Services market is expected to grow an estimated 15.4% Compound Annual Growth Rate (CAGR) per year from 2012 to 2017 from $5.53 billion to $9.81 billion per year.  Services comprise approximately 72% of the market and software comprises approximately 28%.
  • The eDiscovery Software market is expected to grow an estimated 16.78% annual growth per year from 2012 to 2017 from $1.49 billion to $2.78 billion per year.  Processing and Review applications currently comprise 62% of the software market (expected to drop to 55% by 2017), while Early Case Assessment applications currently comprise 38% of the market (expected to rise to 45% by 2017).
  • The eDiscovery Services market is expected to grow an estimated 14.9% annual growth per year from 2012 to 2017 from $4.04 billion to $7.03 billion per year.  The breakdown of the services market is as follows: 73% review, 19% processing and 8% collection.  Personally, I think collection will be a larger percentage that that – at least based on my experiences.

Here are the sources that Rob states were used in compiling the “mashup” (links to our blog posts when available):

For more information (including some cool, informative graphs), click here.  Thanks, Rob!

So, what do you think?  Do those growth numbers surprise you?  Do you agree with them?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Good Processing Requires a Sound Process – eDiscovery Best Practices

As we discussed yesterday, working with electronic files in a review tool is NOT just simply a matter of loading the files and getting started.  Electronic files are diverse and can represent a whole collection of issues to address in order to process them for loading.  To address those issues effectively, processing requires a sound process.

eDiscovery providers like (shameless plus warning!) CloudNine Discovery process electronic files regularly to enable their clients to work with those files during review and production.  As a result, we are aware of some of the information that must be provided by the client to ensure that the resulting processed data meets their needs and have created an EDD processing spec sheet to gather that information before processing.  Examples of information we collect from our clients:

  • Do you need de-duplication?  If so, should it performed at the case or the custodian level?
  • Should Outlook emails be extracted in MSG or HTM format?
  • What time zone should we use for email extraction?  Typically, it’s the local time zone of the client or Greenwich Mean Time (GMT).  If you don’t think that matters, consider this example.
  • Should we perform Optical Character Recognition (OCR) for image-only files that don’t have corresponding text?  If we don’t OCR those files, these could be responsive files that are missed during searching.
  • If any password-protected files are encountered, should we attempt to crack those passwords or log them as exception files?
  • Should the collection be culled based on a responsive date range?
  • Should the collection be culled based on key terms?

Those are some general examples for native processing.  If the client requests creation of image files (many still do, despite the well documented advantages of native files), there are a number of additional questions we ask regarding the image processing.  Some examples:

  • Generate as single-page TIFF, multi-page TIFF, text-searchable PDF or non text-searchable PDF?
  • Should color images be created when appropriate?
  • Should we generate placeholder images for unsupported or corrupt files that cannot be repaired?
  • Should we create images of Excel files?  If so, we proceed to ask a series of questions about formatting preferences, including orientation (portrait or landscape), scaling options (auto-size columns or fit to page), printing gridlines, printing hidden rows/columns/sheets, etc.
  • Should we endorse the images?  If so, how?

Those are just some examples.  Questions about print format options for Excel, Word and PowerPoint take up almost a full page by themselves – there are a lot of formatting options for those files and we identify default parameters that we typically use.  Don’t get me started.

We also ask questions about load file generation (if the data is not being loaded into our own review tool, OnDemand®), including what load file format is preferred and parameters associated with the desired load file format.

This isn’t a comprehensive list of questions we ask, just a sample to illustrate how many decisions must be made to effectively process electronic data.  Processing data is not just a matter of feeding native electronic files into the processing tool and generating results, it requires a sound process to ensure that the resulting output will meet the needs of the case.

So, what do you think?  How do you handle processing of electronic files?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – No hamsters were harmed in the making of this blog post.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Files are Already Electronic, How Hard Can They Be to Load? – eDiscovery Best Practices

Since hard copy discovery became electronic discovery, I’ve worked with a number of clients who expect that working with electronic files in a review tool is simply a matter of loading the files and getting started.  Unfortunately, it’s not that simple!

Back when most discovery was paper based, the usefulness of the documents was understandably limited.  Documents were paper and they all required conversion to image to be viewed electronically, optical character recognition (OCR) to capture their text (though not 100% accurately) and coding (i.e., data entry) to capture key data elements (e.g., author, recipient, subject, document date, document type, names mentioned, etc.).  It was a problem, but it was a consistent problem – all documents needed the same treatment to make them searchable and usable electronically.

Though electronic files are already electronic, that doesn’t mean that they’re ready for review as is.  They don’t just represent one problem, they can represent a whole collection of problems.  For example:

These are just a few examples of why working with electronic files for review isn’t necessarily straightforward.  Of course, when processed correctly, electronic files include considerable metadata that provides useful information about how and when the files were created and used, and by whom.  They’re way more useful than paper documents.  So, it’s still preferable to work with electronic files instead of hard copy files whenever they are available.  But, despite what you might think, that doesn’t make them ready to review as is.

So, what do you think?  Have you encountered difficulties or challenges when processing electronic files?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Spoliation Sanctions Can Apply to Audio Files Too – eDiscovery Case Law

In Hart v. Dillon Cos., 2013 U.S. Dist. (D. Colo. 2013), Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

As noted in the opinion, here are the facts:

  • On August 23, 2011, the plaintiff was terminated by the defendant for allegedly giving herself the incorrect pay rate while working in the bookkeeping department. As part of the defendant’s investigation, a loss prevention specialist for the defendant secretly tape recorded an interview with the plaintiff on August 6 which in part led to the termination of the plaintiff.
  • On November 1, 2011, the plaintiff filed an E.E.O.C. charge of discrimination.
  • On November 7, 2011, the defendant denied the plaintiff’s request for arbitration knowing the plaintiff would probably litigate the matter.
  • Sometime between January and March of 2012, the loss prevention specialist inadvertently taped over or erased his interview with the plaintiff.
  • On January 30, 2012, the plaintiff filed her Complaint.
  • On March 1, 2012, the defendant issued a litigation hold on all related documentation. Before the contents of the tape were destroyed, Pollard prepared a “case narrative” in writing which the defendant asserts is substantially accurate and the plaintiff claims does not include exculpatory information and the tenor of the interview.

As noted in the opinion, there is a three part test to determine spoliation of evidence:

1. Is the evidence relevant to an issue at trial?

2. Did the party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent?

3. Was the other party prejudiced by the destruction of the evidence?

Judge West found that the interview was relevant as the defendant relied on the interview as part of the decision to terminate the plaintiff.  He also found that the defendant had a duty to preserve the data as far back as November 7, 2011, when the plaintiff’s request for arbitration was denied.  And, he found that the plaintiff was prejudiced by destruction of the audio, noting as many as 21 discrepancies between the defendant’s case narrative and the plaintiff’s stated recollection in her deposition and affidavit.  As he noted:

“Defendant was clearly four (4) months late in issuing a “litigation hold” concerning the tape in Pollard’s possession, and the Court finds Defendant is highly culpable for the failure to preserve the taped interview.

A failure to preserve evidence may be negligent, grossly negligent, or willful. After the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful behavior.”

Thus, Judge West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence and ordered the hearing to determine the sanctions to be applied to the defendant.

So, what do you think?  Did the judge make the right decision?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Wish There Were Better Standards for Production of Native Files? Enough is ENF! – eDiscovery Trends

At the Electronic Discovery Reference Model (EDRM) annual meeting back in May, I provided updates for several of the EDRM projects, two of which (Metrics and Jobs) have already made significant announcements since the meeting.  Another project, the new Native Files project, has recently released two white papers authored by EDRM member Wade Peterson (of Bowman and Brooke LLP) proposing the creation and adoption of a new ENF (encapsulated native file) standard for the production of native files.

In Can Native File Productions be ENF (Enough)?, Peterson presents the conceptual framework for defining the new standard.  This white paper includes several sections, such as:

  • Background: Describes the historical background regarding traditional document productions as either paper, TIFF or PDF;
  • Executive Overview: Describes the problem (outdated standards defined almost two decades ago) and the purpose of the paper (to present a conceptual framework for defining a new, up-to-date standard that reflects “3-dimensional” native documents);
  • Challenges: A list of several challenges facing litigation support professionals today when producing documents, including these: “Courts and opposing counsel are increasingly demanding ‘native file productions’”, “Native files can be altered (either intentionally or not)” and “Native files cannot be redacted”;
  • Solution: The stated goal to develop a new standard for document productions, which addresses today’s concerns, has an open architecture to meet future requirements and is eventually adopted by courts as the legal standard;
  • Architecture: A detailed description of the architecture “framework for ‘encapsulating’ native files in sort of an envelope metaphor”, with a diagram to illustrate the framework;
  • Enhancements to the Standard: A discussion of possible enhancements that could be incorporated into the open-architecture standard;
  • Overcoming Obstacles: A discussion of potential obstacles as well as processes and tools needed to support this standard;
  • Conclusion: A summary call to construct a new document production standard to replace the standards “defined well over 20 years ago to produce documents which didn’t even exist 20 years ago”;
  • Author: A bio of the author, Wade Peterson.

In This is Just About ENF, Wade illustrates a sample ENF, describes some of its elements, and describes the operation of a basic utility to view ENF files.  It shows a sample XML representation of a sample ENF, describes Attributes, potential Vendor enhancements to ENF files, includes a detailed description of the Native Files element of the ENF, discusses Areas of Concern when dealing with native files and illustrates a very basic viewing tool, which he refers to as “viewENF”.

The two white papers reflect quite a bit of thought and effort to begin the process to create and adopt a new standard for addressing a growing problem – the production of a diverse collection of native files.  It will be interesting how the effort progresses to gain support for this proposed new standard.

So, what do you think?  Does this proposed standard appear to be a promising solution to the native file production issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer – eDiscovery Case Law

On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

As reported in IT-Lex.org (Gross Negligence + Lack Of Litigation Hold = Spoliation Sanctions), In Harry Weiss, Inc. v. Moskowitz, a dispute involving diamond dealers and brokers, the Appellate Division upheld the defendants’ motion for spoliation sanctions to the extent of precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims, unanimously affirmed, with costs.  As noted in the transcript:

“More than two years into this litigation, plaintiff’s bookkeeper revealed at his deposition for the first time that certain electronic files that were created to track defendants’ commissions were either “lost” or “deleted” at the end of 2007 and 2008, after a copy of the file had been printed. The bookkeeper further testified that he created and kept all of plaintiff’s records on one computer, which had been in use for the last ten years. A month later, when defendants’ attorney sought to forensically examine the computer to determine if any of the deleted files could be restored, plaintiff’s bookkeeper claimed, for the first time, that the computer was “broken” and had been thrown away in late 2009 or early 2010, after the commencement of this action. Thereafter, the bookkeeper testified that numerous documents supporting plaintiff’s claim that defendants were not entitled to commissions could not be produced because they were stored only on the discarded computer.”

The plaintiff was put on notice of its obligation to “preserve all relevant records, electronic or otherwise,” at the very latest, in July 2009, when it received defendants’ answer asserting counterclaims for commissions, so the disposition of the computer was spoliation of that data.

The plaintiff claimed that disposal of the computer did not cause defendants any prejudice because many of the files were printed prior to its disposal, but the court rejected that argument, noting that “converting the files from their native format to hard-copy form would have resulted in the loss of discoverable metadata”. “In addition, by discarding the computer after its duty to preserve had attached without giving notice to defendants, plaintiff deprived defendants of the opportunity to have their own expert examine the computer to determine if the deleted files could be restored”.

So, what do you think?  Was the sanction justified?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Free Your Mind, the Matrix Has You – eDiscovery Trends

OK, maybe it’s not The Matrix with Neo and Morpheus, but if you perform a role in eDiscovery, the Electronic Discovery Reference Model (EDRM) Talent Task Matrix probably describes the responsibilities associated with your role in the process.

Back in February, we introduced the Talent Task Matrix as a tool collaboratively developed by EDRM’s Jobs Project Team to help hiring managers better understand the responsibilities associated with common eDiscovery roles. The Matrix maps responsibilities to the EDRM framework, so eDiscovery duties associated can be assigned to the appropriate parties.

The EDRM Talent Task Matrix Spreadsheet is available in XLSX or PDF format.  It shows the EDRM Stage and Stage Area, the Responsibility within each stage, followed by the various positions that have responsibilities within the eDiscovery life cycle.  It shows a “Yes” for each responsibility that each position participates in the responsibility.  There are 130 responsibilities listed in the Matrix, covering the entire EDRM life cycle.

Since the release of the Matrix in January 2013, it has been downloaded more than 1,000 times!  Chances are, at least some of you reading this have downloaded it.

Now, as indicated in this press release, the EDRM Jobs Team is interested in learning how the Matrix is used by people responsible for hiring and professional development in their organizations. They specifically want to know how the Matrix was used and what results were achieved.  They plan to use success stories regarding use of the Matrix to develop case studies to be posted on EDRM.net.

If you have downloaded the Matrix or know of someone who has downloaded the Matrix, EDRM would like to hear from you!  Contact Tom Gelbmann or George Socha (at mail@edrm.net) to share your experiences and results (all responses will be held in confidence).

If your organization has not yet used the Matrix, but intends to do so, you can still contact them and provide a brief summary of your plans to use the Matrix and any comments or recommendations you may have to improve on the Matrix to meet your needs.  It may not have those gun racks that appear out of nowhere, but it’s still pretty cool.

So, what do you think?  Have you used the Talent Task Matrix?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.  The sticking point may be the ESI consultant in dispute.

As reported by Victor Li in Law Technology News (Judge Refuses to Disqualify EDD Vendor for Playing Both Sides), the defendant in Gordon v. Kaleida Health is taking its fight to the U.S. District Court to have eDiscovery vendor D4 Discovery disqualified from working on the case on behalf of the plaintiffs.  In their initial objection on June 5 and their July 12 filing, Kaleida Health claimed that New York Magistrate Judge Leslie Foschio erred and that D4 should have been disqualified.  As the article notes, “Kaleida’s attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 (in 2010) to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4’s representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected.”

In his ruling, Foschio ruled that there was no conflict of interest for reasons including:

  • D4’s involvement with Kaleida was limited to scanning and coding documents;
  • Kaleida failed to show that D4 had access to any confidential information;
  • D4’s duties to Kaleida were “a routine clerical function” (similar to photocopying documents) while services provided to the plaintiffs were “requiring expert knowledge or skills”;
  • D4 had only been hired to code objective information into assigned fields and was not asked to identify substantive case issues or make subjective decisions about the documents;
  • D4 had actually subcontracted its work for Kaleida to Infovision 21.

Conversely, Kaleida and its attorneys at Nixon Peabody argued that there was a confidential relationship with D4 and that D4 had access to sensitive information, arguing that the plaintiffs’ attorneys at Thomas & Solomon spoke directly to Amir Karahasanovic, the D4 employee who had handled the Kaleida job, violating that confidential relationship.

Li’s article also quotes Electronic Discovery Reference Model (EDRM) co-founder George Socha (a thought leader interviewee on this blog for the past three years), who referenced the EDRM’s Model Code of Conduct (our previous post about it here) as a means to encourage vendors to avoid these types of situations.  In Guideline 9 of Principle 3 (Conflicts of Interest) of the code, it states “Service Providers should not proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”

So, what do you think?  Are there some services or situations where it’s acceptable for an eDiscovery provider to work on both sides of a case?  Or should providers only do so if both parties agree?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Rules that Stored Communications Act Applies to Former Employee Emails – eDiscovery Case Law

In Lazette v. Kulmatycki, No. 3:12CV2416, 2013 U.S. Dist. (N.D. Ohio June 5, 2013), the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened but not emails she had read but not yet deleted.

When the plaintiff left her employer, she returned her company-issued Blackberry, which she believed the company would recycle and give to another employee. Over the next eighteen months, her former supervisor read 48,000 emails on the plaintiff’s personal Gmail account without her knowledge or authorization. The plaintiff also claimed her supervisor shared the contents of her emails with others. As a result, she filed a lawsuit alleging violations of the SCA, among other claims.

The SCA allows recovery where someone “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system.” “Electronic storage” includes “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

The defendants claimed that Kulmatycki’s review of the plaintiff’s emails did not violate the SCA for several reasons: the SCA was aimed at “‘high-tech’ criminals, such as computer hackers,”‘ that Kulmatycki had authority to access the plaintiff’s emails, that his access “did not occur via ‘a facility through which an electronic communication service is provided’ other than the company owned Blackberry,” that “the emails were not in electronic storage when Kulmatycki read them,” and that the company was exempt because “the person or entity providing an electronic communications service is exempt from the Act, because the complaint does not make clear that plaintiff’s g-mail account was separate from her company account.”

The court rejected all but one of the defendants’ arguments. The SCA’s scope extended beyond high-tech hackers, and the Gmail server was the “facility” in question, not the plaintiff’s Blackberry. The court also found that the plaintiff’s failure to delete her Gmail account from her Blackberry did not give her supervisor her implied consent to access her emails; the plaintiff’s negligence did not amount to “approval, much less authorization. There is a difference between someone who fails to leave the door locked when going out and one who leaves it open knowing someone be stopping by.” The court also found that the former employer could be held liable through respondeat superior: the actions of the supervisor could be imputed to the company.

Where the defendants scored a minor victory is in their interpretation of “storage”: any emails that the plaintiff had opened but not deleted before the defendant saw them were not being kept “for the purposes of backup protection” and thus were not protected under the SCA.

Accordingly, the court allowed the plaintiff’s SCA claim to proceed.

So, what do you think?  Should the emails have been protected under the SCA?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.