Monday, April 19, 2010

Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery

The Supreme Court heard oral arguments in City of Ontario v. Quon today (transcript .pdf). On its face, the case deals with the Fourth Amendment, not generally considered a hot topic in employment law. But the first question presented (per the petitioner's brief) is:
Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.
There could be a number of implications in employment law and litigation generally.

The Supreme Court's opinion will likely address an employee's reasonable expectation of privacy under the circumstances presented in this case. A broad holding could set the standard for employee privacy in any number of electronic communications, including text messages on company-issued cell phones, email, social media, etc. This could affect common law privacy claims.

There are two aspects that could affect employers' policies. First, employers may need to edit their policies to protect any new privacy rights afforded to employees as described above. Second, the case may impact how courts address conflicts between "official" policy, and "informal policy."

Privilege analysis, most notably attorney-client privilege, often turns on the party's reasonable expectation of privacy. The Supreme Court's holding regarding the expectation of privacy in text messages on a pager may provide broader insight into other electronic communications involving the employer's equipment.

In 'Quon' Could Have Consequences for E-Discovery (.pdf), Farrah Pepper and Jeffrey Coren present a fascinating take on the case. In litigation, parties have a duty to preserve data in their possession, and possibly provide it to the opposing party in the course of discovery. As the article explains, if the Supreme Court recognizes a broad expectation of privacy, it could,
create confusion for private employers that seek to comply with discovery obligations without offending their employees’ privacy rights.
Employers may have trouble walking that line.

Quon has the potential to have a huge impact. That will depend largely on the holding. At the very least, it offers employers food for thought regarding technology, employee privacy, and the assorted legal issues they raise.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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