International Law

Numerous courts have imposed sanctions for failing to preserve e-mails and other electronic documents. But few decisions have addressed the consequences of destroying electronic information stored on portable electronic devices -- such as BlackBerrys and smart phones. This may be starting to change.

Recently, in Southeastern Mechanical Services Inc. v. Brody, No. 8:08-CV-1151, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009), the Middle District of Florida imposed spoliation sanctions for destruction of e-mails, calendar entries and text messages that were stored on portable electronic devices. This court's imposition of sanctions is an important reminder about the consequences of deleting information on such devices.

In particular, the court found it significant that information stored on the BlackBerrys at issue had not been fully synchronized to a corporate server -- and therefore destruction of information contained on the BlackBerrys was improper. Accordingly, both counsel and litigants should be apprised of the scope of the duty to preserve electronic information and should keep in mind that the duty to preserve such information likely extends to portable devices, such as BlackBerrys and smart phones.

On Monday, the Supreme Court agreed to hear a case where it will decide whether employers have the right to monitor text messages sent on company pagers. City of Ontario v. Quon could establish new rules regarding workers rights for privacy on employer-owned electronics.

....Transcripts showed that Sgt. Jeff Quon sent his wife, girlfriend and another officer hundreds of personal messages. The 9th Circuit Court of Appeals sided with the Quon and other officers, ruling that they had a ?reasonable expectation of privacy" and that the department violated the Fourth Amendment. It also found that the wireless provider violated the Electronic Communications Privacy Act by turning over the transcript. The San Francisco-based court?s decision is the first by a federal appeals court to find that the Constitution protects workers privacy rights when they are using electronic devices that their employers own.

The topic has also shown up in New Jersey?s Supreme Court. The state's highest court will decide if a home health care provider has the right to monitor all activity on the company?s technology systems includes one employee?s e-mails with her lawyer. Sent from a personal account on a company-owned laptop, the messages were about a lawsuit she was filing against the employer for sexual harassment and ethnic discrimination. A lower court determined the worker?s employee-client privilege outweighed the company?s policy.

- Garry J. Wise, Toronto

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