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Social Media in the Workplace – You Be the Judge

Social Media in the Workplace – You Be the Judge

It seems there is simply no avoiding it – social media is everywhere. From PCs to smartphones, for the young and the old, social media pervades every aspect of modern communication. As of June 2010, Americans spent 22.7% of their time online using social networking sites and blogs, representing a 43% increase from June 2009. The growing ubiquity of social media means that it is becoming increasingly prevalent in circumstances where it may not necessarily be welcome, such as the workplace.

In 2009, 53% of employee respondents to a Deloitte survey believed their social media activity was none of their employers’ business, and 61% reported that they would not alter their social media behavior even if their employers were monitoring it. Employers everywhere are grappling with the fuzzy ethical, legal and security issues presented by social media as they try to effectively manage this growing phenomenon. Permitting social media use under the guidelines of a well-written employee policy seems to be the best solution, but does it necessarily obviate the potential risks, and perhaps more importantly, is it worth it?

“Liking” Social Media in the Workplace?

Permitting the use of social media in the workplace undoubtedly has its benefits. As of 2009, 56% of business executives believed that using social networking sites helped their employees achieve a better work-life balance. This will become increasingly true as social media continues to make bold strides toward overtaking e-mail as the predominant form of communication. Evidence shows that a large portion of social media’s growth in online time has already come at the expense of e-mail, which took a whopping 28% decline from 2009 to 2010. According to a recent Gartner publication, social media is predicted to replace e-mail as the predominant form of communication by as early as 2014.

In light of social media’s growing importance, companies are striving to permit and control its use, which at least in theory seems plausible. Because social media is still relatively new, case law directly on point is scarce. However, given social media’s similarity to (and predicted succession of) e-mail, the principles applied in cases discussing e-mail in the employment context can likely be extrapolated to the treatment of social media in coming years. Well-written employee usage policies have gone a long way toward providing employers authorization to monitor e-mail activity as well as insulation from potential liability for abuse. Some policies have even been enough to extinguish claims of privilege – both attorney-client and marital – made over employer computer systems. In Alamar Ranch, LLC v. County of Boise, the court found that the company placed all employees on notice that e-mails would become the employer’s property, and determined that privilege was therefore waived with respect to the e-mails sent using the client’s work account. In a recent case out of the Southern District of New York, the court similarly found that marital privilege did not extend to communications made over the employer’s systems because the defendant was aware of the policy that expressly banned personal use and reserved the rights of routine e-mail monitoring and third party access to employee e-mails.

Extending these principles to social media, it seems probable that employers can effectively reserve the right to monitor social media activity and extinguish any expectation of privacy through well-written employee use policies – as all responsible employers wishing to permit social media use should. But while most employers concerned about social media liability tend to end the analysis here, perhaps it is where they should begin.

If employers want to permit social media use, then they must reserve the right to monitor it. However, does that right to monitor implicate any concomitant duties they may be less willing to take on?

Employer Liability for Employee Abuse?

One of the most distinguishing characteristics of social media is that users tend to be more forthcoming and candid than on traditional forms of media. This can, and has in fact already, led to many situations where employees inadvertently disclose confidential information or make inappropriate remarks. If an employer has reserved the right to monitor social media use, then to what extent are they responsible for inappropriate activity? Take for example, Amira-Jabbar v. Travel Services, where an employee argued that her employer was responsible for discriminatory comments made by coworkers on Facebook because it permitted access to the site during company time. The court ultimately determined the employer was not liable based on their prompt reaction to completely block access to the social networking site from its systems, but no indication was given that it could not have otherwise been responsible had it acted differently.

Discovery Obligations?

Another concern should be whether allowing employee access to social networking sites extends the employer’s duty to preserve and produce electronically stored information into this realm. One can only imagine the litany of ethical and legal issues such a situation could spawn. The scope of discovery is notoriously broad, permitting an opposing party to request any non-privileged, relevant information, or information reasonably calculated to lead to the discovery of admissible evidence. At face value at least, it appears reasonable that an opponent could seek discovery from social networking sites. However, relatively few companies currently archive social media. Could the failure to preserve this evidence lead to spoliation charges?

Perhaps more challenging, to what extent does the reservation to monitor social media activity grant an employer the right to access an employee’s personal account? As technology continues to evolve, “the line separating business from personal activities can easily blur” the Supreme Court of New Jersey aptly noted in the opening of its opinion in Stengart v. Loving Care Agency, Inc. The case addressed the question of whether an employee use policy granted an employer the right to access e-mail communications conducted via an employee’s personal account but over an employer-issued laptop. The court ultimately ruled that the employer was not entitled to privileged e-mail communications made between a former employee and her attorney through her personal Yahoo! account. However, the trial court originally found that the employee use policy effectively converted the communications into company property, and had it not been for the underlying privilege issues upon which the Appellate Division and Supreme Court relied on in reversing the decision, the original ruling may well have stood. This is especially true in light of the view held by some courts that sharing personal information is “the very nature and purpose of these social networking sites,” so any hope for “privacy is no longer grounded in reasonable expectations, but rather some theoretical protocol better known as wishful thinking.” Nonetheless, while some employees may be comfortable with their employer monitoring their social media activity, most would certainly be unwilling to concede ownership – and surprised to learn of the possibility.

You Be the Judge

While the issues presented here are only theoretical, they point up the uncertainty surrounding social media. As an employer, should you allow social media use? As an employee, should you exercise that permission? For both, is it even worth the risk?

Tell us what you think.

Case Law: Haraburda v. Arcelor Mittal USA, Inc

Case Law

Court Orders Defendants to Issue Litigation Hold Before Rule 26(f) Conference

Haraburda v. Arcelor Mittal USA, Inc., 2011 WL 2600756 (N.D. Ind. June 28, 2011). In this employment discrimination suit, the plaintiff requested the court order the defendant to preserve e-mail evidence, claiming the defendant previously deleted e-mails from the plaintiff’s account without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet and confer. The defendant argued the plaintiff’s request was premature as Rule 26(d)(1) prohibited a party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant’s argument, the court noted Rule 26(d)(1) prohibited requesting production – not compelling preservation – and stated that ruling to the contrary would leave a party with knowledge of an intent to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer measurable prejudice based on the suit’s heavy reliance on e-mails if evidence was destroyed and ordered the defendant to implement a litigation hold.

Commentary

Although the defendant put forth a novel argument, it failed to acknowledge the obligations each party has to proactively preserve evidence upon the reasonable anticipation of litigation. As the Sedona Conference® notes, the duty to preserve evidence “includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation”. The Sedona Conference®, Commentary on Legal Holds: The Trigger and the Process.

However, the issue of when the duty actually arises is often a challenging one as different courts have found various triggers to be applicable. Generally, courts recognize that the “mere possibility of litigation” does not trigger the duty to preserve because litigation is “an ever-present possibility” in modern society. Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc.

Recently, the District of Colorado determined that the defendant’s duty to preserve evidence triggered when the plaintiff filed a formal complaint at work (racial discrimination lawsuit), which put the defendant on notice to preserve all existing and future video that included the plaintiff. The defendant failed to do so, and the court found the plaintiff was prejudiced by the defendant’s willful destruction of video recordings. Accordingly, the court issued both mandatory and permissive adverse inference instructions as well as attorney fees relating to the spoliation motion. McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo. May 2, 2011). In the 2009 case, Goodman v. Praxair Services, Inc., the District of Maryland concluded that the defendant’s duty to preserve triggered following receipt of a letter informing the defendant the plaintiff had consulted attorneys. Further, a ruling from the Southern District of New York found the duty to preserve arose no later than the lawsuit’s filing. Green v. McClendon.

As demonstrated by the sampling of cases above (which by no means present an exhaustive list of possibilities), it is no wonder parties are confused as to when the duty to preserve arises. It is better for parties to be safe than sorry by implementing a written legal hold sooner rather than later if litigation appears to be on the horizon. To increase defensibility, parties should maintain detailed notes of the preservation protocol followed, which includes when the hold was issued, what details were included in the hold, to whom the hold was issued and the efforts taken to continually monitor compliance.

Case Law: Bower v. Bower

Case Law

Court Finds SCA Prohibits Third Party Production of E-mails, Declines to Imply Consent

Bower v. Bower, 2011 WL 1326643 (D. Mass. Apr. 5, 2011). In this tort litigation relating to the alleged abductions of the plaintiff’s minor children, the plaintiff sought to compel Yahoo! and Google to comply with a third party document subpoena and to compel the defendant to consent to the production of e-mails. Agreeing with Yahoo! and Google that the Stored Communications Act (SCA) barred the requested production absent the defendant’s consent and finding no exception requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P. 34 document request, however, it found no support to order consent for failure to respond to a motion to compel consent. Further, the court disregarded the plaintiff’s argument that the defendant’s fugitive status should be sufficient to order consent and distinguished this case from those where an implied agreement has been found in light of affirmative participation in the judicial process. Based on this analysis, the court declined to find anything in the defendant’s actions (or status as a fugitive) from which to imply consent to disclose her information.

Commentary

The Stored Communications Act, 18 U.S.C. § 2701 et seq. (1986) prohibits Electronic Communication Service (ECS) and Remote Computing Service (RCS) providers from knowingly divulging the contents of a communication it stores unless the divulgence is to an intended recipient of such communication or express permission from the sender is obtained. Congress passed the Stored Communications Act (SCA) in 1986 as part of the Electronic Communications Privacy Act. “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Cripsin v. Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010) (citing Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008).

However, there have been instances where the SCA was circumvented through alternative means. In Flagg v. City of Detroit, the Eastern District of Michigan rejected the defendants’ reading of the SCA that the statute wholly precludes the production of electronic communications stored by a non-party service provider in civil litigation. Further, the court found that possession that possession for purposes of requiring production includes control over the information, which defendants maintained through its contractual relationship with the non-party service provider. However, the court was willing to modify the means of production – holding that the third party subpoena was unnecessary – and instead the court ordered the plaintiff to file a Fed.R.Civ.P. 34 production request.

Many believe the SCA is outdated and in need of a serious “facelift” to more accurately address the technological issues prominent in modern society; after all, the law was enacted in the mid-80’s when computers were just beginning their popularity. The outdated nature of this law is clearly seen in cases discussing the discoverability of social networking sites. In Crispin, the court found that with respect to private messages, social networking sites acted as both ECS and RCS providers, and the SCA prohibited disclosure of privately stored information. However, there was no clear answer with regard to content that is considered “public” on these sites. The court remanded the case to determine if social networking site providers are required to comply with subpoenas for publicly stored information such as wall postings, status updates, etc. (decision remains pending).

Case Law: DL v. District of Columbia

Case Law

Court Imposes Sanctions for Extreme “Unheard Of” Discovery Abuse

DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011). In this class action dispute concerning free public education under the Individuals with Disabilities and Education Act, the defendant filed a motion to reconsider the grant of the plaintiff’s motion to compel production and the court’s determination that privilege was waived for all e-mails yet to be produced. On the day the court was scheduled to issue its opinion, the plaintiffs’ counsel informed the court the defendants had produced thousands of e-mails days before trial and were continuing to “document dump” after trial concluded. The defense counsel claimed the District was understaffed, committed supplemental searches that yielded tens of thousands of additional e-mails, discovery was voluminous and there were not “enough bodies” to complete the process before trial. Denying the defendants’ motion, the court cited the “repeated, flagrant, and unrepentant failures to comply with Court orders” and “discovery abuse so extreme as to be literally unheard of in this Court.” The court also repeatedly noted the defendants’ failure to adhere to the discovery framework provided by the Federal Rules of Civil Procedure and advised the defendants to invest time spent “ankle-biting the plaintiffs” into shaping up its own discovery conduct.

Notable Quotes

This opinion contained quite a few notable quotes that were not incorporated into the case summary. Here are some of the court’s words that explain the magnitude of its displeasure with the defendants’ discovery shortcomings.

  • “April 6, 2011, though, turned out to be only the beginning of the next outrageous chapter in the ongoing discovery saga that has come to define this case.”
  • “[E]xpeditious and just resolution of cases and controversies is this Court’s abiding lodestar.”
  • “Yet even after being called out in a [2008] Court order, the District – its head apparently buried in the sand – remained committed to its corrupt production strategy.”
  • “Discovery disputes are ‘for better or worse, the daily bread of magistrate and district judges in the age of the disappearing trial.’” (Citing Lee v. Max Int’l, LLC, 2011 WL 1651640, at *2 (10th Cir. May 3, 2011).
  • “But as bad as the District’s violation of multiple discovery orders was, that wasn’t its most appalling discovery abuse in this case. That ignominious designation is reserved for the District’s violation of Rule 26(e)’s duty to supplement its discovery responses.”
  • “The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through any of the Rule-based mechanisms…”
  • If the court had not ordered the defendants’ privilege waived, “the delay would have overcrowded this Court’s already congested trial calendar and simultaneously and unfairly increased the costs for both parties…”
  • “The District had countless opportunities to stop ignoring its discovery obligations. It chose not to, and it should not be surprised that its misconduct has caught up with it.”
  • “Disciplined adhered to [the Federal] Rules and [court] Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process.”
  • “The District would be well-advised to invest the time it’s spent ankle-biting the plaintiffs for various alleged discovery abuses in bringing its own conduct in line…”
  • “In short, this is a prime example of the lesson many learn as children: When you point one finger at another, three point back at you.

Case Law: In re Royce Homes, LP

Case Law

Citing “Explicit” Company Policy, Court Finds E-Mails Sent Over Company Systems Not Privileged

In re Royce Homes, LP, 2011 WL 873428 (Bkrtcy. S.D. Tex. Mar. 11, 2011). In this bankruptcy litigation, the trustee sought production of documents that a key employee of the debtor company claimed as privileged. Despite using his work computer and company e-mail account for personal matters, the employee argued he did not waive attorney-client privilege and maintained only necessary third parties were privy to his communications. Rejecting this argument, the court focused on the debtor company’s Electronic Communications Policy, which stated that nothing contained on any company electronic system would be considered private and permitted limited personal communications “with the understanding that personal communications may be accessed, viewed, read or retrieved by a company manager or employee” but that “Employees are NOT to disseminate any confidential information over the company’s system.” Finding the policy explicitly and straightforwardly banned confidential communications, the court rendered evidence of actual enforcement irrelevant. Noting the policy was memorialized in the employee handbook, the court also determined actual or direct notification to employees was not required and that it was unreasonable for the employee to believe his e-mails would remain confidential. Finding insufficient evidence that privilege applied or was waived, the court ordered production of the communications listed in the employee’s privilege log.

Commentary

Company policies regarding employee use of technology are significantly important for corporations to possess and distribute. Case law over the past year has demonstrated the imperative nature of implementing and maintaining these policies, in addition to highlighting the differences among jurisdictions in terms of weight given to policies in relation to the attorney-client privilege.

For example, in June 2010, the United States Supreme Court issued its City of Ontario, California v. Quon decision in which it addressed the use of employer-issued technology in light of the reasonable expectation of privacy. The U.S. Supreme Court cited the creation and communication regarding the City’s network and technology use policy in upholding the City’s right to conduct searches of text messages sent by a police officer via his employer-issued pager.

Other conflicting opinions worth a read on this subject include: Stengart v. Loving Care Agency, Inc., Holmes v. Petrovich Dev. Co., LLC, Alamar Ranch, LLC v. County of Boise and Leor Exploration & Prod. LLC v. Aguiar. The issue of reasonable expectation of privacy in the workplace is one we have written extensively about, most recently in regard to the Holmes v. Petrovich Dev. Co., LLC case.

Case Law: Holmes v. Petrovich Dev. Co., LL

Case Law

Court Affirms Attorney-Client Communications over Employer Computer Not Privileged

Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011). In this employment litigation, the plaintiff appealed the trial court’s finding that attorney-client communications sent over her work computer were not privileged. Regarding the transmission of electronic communications in the workplace, the court stated that privilege does not extend to when the employee uses the employer’s systems, is advised that the communications are not private, and is aware of and agrees to these conditions. Although the attorney-client communication was sent via the employer’s e-mail account and the plaintiff was informed of the usage policy, she argued communications were not monitored in practice and this contradiction provided her a reasonable expectation of privacy. Distinguishing the factual circumstances from City of Ontario v. Quon and Stengart v. Loving Care Agency, Inc., the court noted that “absent a company communication…explicitly contradicting” company policy, it is immaterial whether the company actually monitors communications. The court analogized the usage of an employer’s communication systems to consulting an attorney in the employer’s “conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard” and accordingly affirmed the trial court’s finding that attorney-client privilege did not apply.

Commentary

The issue of employee privacy in the workplace is one that has led to several conflicting rulings in various jurisdictions. As referenced in the summary above, the court in this case distinguished the facts from both City of Ontario, California v. Quon and Stengart v. Loving Care Agency, Inc. In Quon, the United States Supreme Court decided the case of narrow grounds without resolving the disagreement in O’Connor v. Ortega regarding the proper test in which to decide a public employee’s expectation of privacy in the workplace. However, the Supreme Court found that the City of Ontario’s search was legitimate and not excessively intrusive in scope. In addition, the Supreme Court relied on the City’s policy that clearly conveyed e-mail messages were subject to auditing. While pager text messages were not mentioned specifically, a meeting was held following the issuance of the pagers to ensure the employee officers were aware that the text messages would be treated in a similar fashion to e-mails. Quon affirms that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

In Stengart, the Supreme Court of New Jersey upheld the Appellate Division’s ruling that held the attorney-client privilege outweighed the defendant’s corporate Internet communications policy. In upholding the Appellate Division’s ruling, the Supreme Court of New Jersey again reviewed the company policy and determined the plaintiff did not have adequate notice that e-mails from her personal account were subject to company monitoring since the policy did not address personal, web-based e-mail accounts. Based on this lack of notice and the strong public policy considerations behind protecting the attorney-client privilege, the court held the e-mails should remain privileged. The court also concluded that employers have no need to read the specific contents of personal, privileged, attorney-client communications in order to enforce a company communications policy. In addition, the court remanded to the trial court the decision of whether sanctions should be imposed against the defendant’s counsel for reading the privileged emails without notifying the plaintiff.

Although there is no one consistent ruling on this subject, based on these employee privacy cases in general, network and technology usage policies are critical. Such policies should be as inclusive and explicit as possible, with clearly established expectations regarding the permissive use of devices such as cell phones, pagers and laptops. These policies should not be created in a vacuum, and should include involvement from the CIO and/or other key members from the IT managers and staff, and should also include legal, either in-house or outside counsel. Following policy creation, employees must be educated as to what is being monitored and why. Documenting the steps taken to ensure each employee has received and reviewed the policy is vital and will provide important supporting material in the event the policy is called into question as it was throughout the instant case.  Finally, it is important to make updates to the policy as new technologies and methods of communication emerge, such as social networking sites

Case Law: United States v. Warshak

Case Law

Court Upholds Government’s Search and Seizure Despite Acknowledging Right to Privacy in E-Mail Communications

United States v. Warshak, 2010 WL 5071766 (C.A.6 (Ohio) Dec. 14, 2010). In this criminal case, the defendants appealed their numerous convictions for fraud claiming the government violated the Fourth Amendment prohibition against unreasonable search and seizures by obtaining private e-mails without a warrant. The defendants also argued that the government turned over immense quantities of discovery in a disorganized and unsearchable format, that the government violated its Brady obligations by producing “gargantuan ‘haystacks’ of discovery” and that the district court erroneously denied a 90-day continuance to allow the defendants to finish sifting through the “mountains of discovery.” Addressing the Fourth Amendment concerns, the court first found the defendant plainly manifested an expectation that his e-mails would remain private given the sensitive and “sometimes damning substance” of the e-mails, viewing it as highly unlikely the defendant expected the e-mails to be made public as people “seldom unfurl their dirty laundry in plain view.”  Next, the court determined that it would defy common sense to treat e-mails differently than more traditional forms of communication and found that neither the possibility nor the right of access by the Internet Service Provider (ISP) is decisive to the issue of privacy expectations. Based on these conclusions, the court held the government may not compel an ISP to turn over e-mails without obtaining a warrant first. However, the court ultimately found the government relied in good faith on the Stored Communications Act in obtaining the e-mails and determined the exclusionary rule does not apply. Turning to the “prodigious” volume of discovery that consisted of millions of pages, the court disagreed with the defendants’ arguments, noting in particular that Fed.R.Crim.P. 16 is silent on what form discovery must take.

Commentary

This lengthy opinion contains several critical holdings and is certainly worth a thorough read. In particular, it is interesting that this decision holds the SCA to be unconstitutional to the extent it permits disclosure of e-mails without the use of a search warrant. In addition, although the court held the officers relied on the SCA in good faith, moving forward, law enforcement officials can no longer rely on those provisions in good faith moving forward as the SCA was deemed unconstitutional with respect to the warrant requirement. This serves as a significant caution and warning to law enforcement officers in the Sixth Circuit and elsewhere (despite the fact that the holding is only mandatory with respect to officers in the Sixth Circuit seeking to compel disclosure under the SCA)

Protecting Privacy and Privilege in the Digital Workplace

Mobility is the status quo for the corporate world – the more portable the “workplace” becomes, the more productive employees can be. Employees also enjoy the quick accessibility and connectivity that advanced technology provides, and often use company equipment to conduct personal business. However, the convenience of using work-issued devices interchangeably for personal communications comes with the risk of losing privacy, especially if employees choose to use company equipment to exchange privileged e-mails with their private attorneys. Several courts have tackled this delicate balance between an employer’s right to monitor use of company-issued equipment with an employee’s right to privacy.

One example of company policy overriding the attorney-client privilege is highlighted in Alamar Ranch, LLC v. County of Boise.[1] In this case, the District of Idaho found that an employee waived the attorney-client privilege when she used her work e-mail address to exchange privileged information with her attorney. An important factor in the court’s decision was the company’s adherence to an airtight privacy policy, which unambiguously reserved “the right to review, audit, intercept, access, and disclose all messages created, received, or sent over the email system for any purpose.” Responding to the plaintiff’s claim that she was unaware her computer e-mails were monitored, the court emphatically stated, “It is unreasonable for any employee in this technological age…to believe that her e-mails, sent directly from her company’s e-mail address over its computers, would not be stored by the company and made available for retrieval.”

However, there appears to be fine line between the scope of legitimate business interests and an employee’s privacy rights. With a slight – but critical – twist of the facts from Alamar Ranch, the New Jersey Supreme Court concluded in Stengart v. Loving Care Agency[2] that a plaintiff did not waive her attorney-client privilege when those communications landed in the hands of her former employer. Like the plaintiff in Alamar Ranch, Stengart communicated with her attorney using her work-issued computer, but she did so via her private, password-protected Yahoo! account rather than her work e-mail. Moreover, Loving Care’s usage policy was ambiguously worded such that Stengart was not properly notified that the company might access and monitor her personal communications. Ultimately, the court held that an employee has a substantive right to privacy in password-protected e-mails, with heightened protection when attorney-client communications are at stake, and that such communications are outside the scope of employment.

For the time being, the United States Supreme Court has passed on issuing a broad ruling addressing an employee’s reasonable expectation of privacy with regard to company-issued equipment. However, in City of Ontario, California v. Quon,[3] the Supreme Court narrowly addressed an employer’s right to monitor the content of employees’ personal communications via company-issued equipment. At issue were text messages sent by a police officer, Jeff Quon, using his work-issued pager (privilege was not an issue). The Ontario Police Department reviewed transcripts of Quon’s text messages to determine whether the officers were allotted sufficient character amounts since Quon had exceeded the limit several times. Finding the City of Ontario possessed a “legitimate interest” for the search, the Supreme Court determined the method of text message transcript review was reasonable.

The Quon decision highlights the importance of a well-drafted, clearly communicated technology and network use policy. The City of Ontario created and implemented such a policy and communicated the policy requirements to all employees. Although the policy did not address pager text messages specifically, the City conveyed to all employees that text messages would be treated in the same manner as e-mail messages. The documented steps the City undertook helped overcome Quon’s argument that text messages were not a designated part of the use policy and thus could not be monitored.

As demonstrated by these cases, different courts may emphasize different factors, but a valuable lesson for companies is that establishing and adhering to a comprehensible company privacy and usage policy is essential. Because each case is fact-specific, an employer raises the likelihood of success if it is demonstrated that an unambiguous policy was established and clearly conveyed to all employees. Policies must also be frequently reviewed and updated to include new and emerging technology, such as social networking.

 
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