December 14, 2017
In recent years, as judges have recognized the thinning, graying line dividing work and home, they have allowed evidence from employees’ personal email accounts for use in lawsuits related to their jobs. Last month, a Manhattan federal magistrate judge ordered six attorneys at a law firm to search their personal emails for responsive information to discovery requests. The attorneys had senior positions at the former law firm of Chadbourne & Parke, which was sued for allegedly underpaying female partners. The attorneys had claimed that they did not conduct firm business on their personal email accounts and that their personal emails contained no information that was relevant to the lawsuit. However, the attorneys had not conducted “test searches” of their personal email accounts. In ordering the attorneys to search their personal emails, the magistrate acknowledged that personal and work communications often overlapped and that the plaintiffs’ personal email accounts also had been subject to discovery. Campbell v. Chadbourne & Parke LLP (S.D. N.Y. Nov. 9, 2017).
In a California case decided in federal court, Matthew Enterprise, Inc. v. Chrysler Group LLC (N.D. CA 2015) 2015 WL 8482256, Chrysler sought to compel Matthew Enterprises to produce emails from the personal accounts of Matthew Enterprises’ employees and from its customer communications data base. The court recognized that many of Matthew Enterprises’ employees used their personal accounts for business purposes. Yet it also recognized that Matthew Enterprises did not control these accounts, because it lacked the legal right to obtain them upon demand. Therefore, the accounts were beyond the scope of discovery. However, Matthew Enterprises controlled its customer communications database. Consequently, the court ruled that these communications were subject to discovery.
In Puerto Rico Telephone Co., Inc. v. San Juan Cable LLC (D. P.R. 2013) 2013 WL 5533711, Puerto Rico Telephone asked the Puerto Rico magistrate to sanction San Juan Cable for not producing emails from the personal accounts of its former officers. The judge noted that San Juan Cable had a duty to preserve the accounts because they had been used by the officers to manage the company. However, the judge denied sanctions, acknowledging that shortly after the complaint was filed, San Juan Cable issued a litigation notice informing its officers and employees of their duty to preserve electronic data and all other relevant evidence.
In a recent Florida case, text messages between individual employees were considered applicable evidence in a lawsuit against their company. Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd. (S.D. Fl. 2016) 2016 WL 1105297.
Implications for Employers
These cases demonstrate that employers that allow workers to mingle their personal and work email accounts risk subjecting their employees’ personal emails to discovery. Discovery of employees’ personal emails, in turn, may lead to other risks. For instance, HIPAA and other privacy laws could be violated if employers were to find communications between their employees and medical personnel while accessing employees’ personal email accounts pursuant to litigation. Also, employees may be compelled to preserve their personal emails in order to prevent sanctions against their employer for spoliation of evidence.
Interspersing work and personal emails creates risks outside of the discovery arena. Non-exempt employees who read or send work emails when they are clocked out may be entitled to overtime or compensation for interrupted meal breaks. In addition, emails sent on employees’ personal accounts may be less secure than those sent from employers’ accounts.
Employers should think carefully about whether to let their employees intermingle personal and work-related devices, email accounts, phone calls, and texts. If employees are allowed to blend work communications with home communications, they should be warned that their email accounts could be subject to discovery and litigation holds. Furthermore, non-exempt employees should report their time spent on work emails, texts, and telephone calls outside of working hours. In addition, employers should further consider safeguarding their employees’ accounts against hackers or other security threats.