Justices Take Up Workplace Privacy With Text Message Case | Law.com
The Supreme Court on Monday leaps into the high-tech world of text messaging in a challenge with potentially huge implications for the privacy rights of senders and receivers and for workplace communications.
City of Ontario, Calif. v. Quon, one of two cases leading off the final round of oral arguments this term, is the Court’s first foray into workplace monitoring of electronic and digital communications.
The city asks the justices whether a member of its police SWAT team had a Fourth Amendment “reasonable expectation of privacy” in text messages transmitted on his SWAT pager. The case also raises the issue of whether the senders of messages to the SWAT pager had their own reasonable expectation that the city would not review their messages.
“It’s a new area. It’s complicated, and the stakes are high given the shift in how people communicate,” said Andrew Pincus, partner in the Washington office of Mayer Brown, who filed an amicus brief supporting the police officer, Jeff Quon, on behalf of civil liberties and consumer groups.
The Quon case is paired on Monday with Christian Legal Society v. Martinez, a challenge to the non-discrimination policy that the University of California Hastings College of Law applies to student groups seeking recognition for funding and services. The Court will hear six additional cases in the next two weeks before wrapping up the term’s arguments, including important challenges involving arbitration, genetically engineered crops and public disclosure of the identities of ballot petition signers.
The Quon challenge is being watched closely by a broad range of litigators — criminal defense, intellectual property, civil rights, employment and others — because the Court’s decision could have significance not just for public employers, such as Ontario, but for private ones, and for discovery of evidence as well.
via Law.com – Justices Take Up Workplace Privacy With Text Message Case.
‘Sexting,’ Texting and EDD Before High Court | Law.com
While stories of “sexting” and cheating husbands are common fare in tabloid magazines, such salacious facts are a relative rarity in U.S. Supreme Court cases. It is equally unusual for the Supreme Court to issue opinions with the potential to touch upon aspects of electronic discovery. A perfect storm is brewing in the form of City of Ontario v. Quon, No. 08-1332, in which the Supreme Court will address a government employee’s expectation of privacy in text messages sent from his employer-issued device — including spicy text messages sent to his wife and alleged mistress. Although Quon involves a public employer, the Court’s ruling potentially could have far-reaching implications for workplace best practices in the private sector as well. In addition, Quon has the potential to extend its reach to other forms of electronic communication beyond text messages, including other types of “outlier” electronically stored information.
Text messages are just one form of outlier ESI, data that parties are more likely to overlook during the discovery process given that it may exist “out of sight” and/or “out of mind.” Common sources of outlier ESI include cellphones and personal digital assistants, voice mail systems, instant messaging systems, chat rooms and web sites. Few court decisions have addressed the preservation and production requirements of outlier ESI in litigation. Under certain circumstances, however, failure to preserve and produce outlier ESI has been held to constitute spoliation and resulted in sanctions such as an adverse inference.
Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law
As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery. Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.” In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:
• Discovery steps should be proportionate. Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.
• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.
• Parties should be prepared to disclose all relevant electronic documents.
• Parties should agree as early as possible on the format in which electronic information will be produced.
via Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law.
Electronic Privacy and the Supreme Court
The Supreme Court will soon weigh in for the first time on the permissible scope of employer monitoring of employees electronic communications. Such monitoring activity raises many issues that remain the subject of uncertainty in this developing area of the law.The case under consideration by the Court, Ontario v. Quon, arises in the context of government employees, who are protected from unreasonable searches by the Fourth Amendment. Private-sector employees have no such constitutional protection. Nonetheless, the Supreme Courts forthcoming ruling will likely have implications for private employers who face employee claims alleging an invasion of their common-law privacy rights.
Ontario Judge Certifies Global Investor Class in Landmark Decision
A pair of groundbreaking rulings issued Monday by an Ontario judge in a securities class action has suddenly made the province a much more attractive jurisdiction for plaintiffs pursuing global securities litigation.
The case, filed against IMAX Corp. and several individual defendants in Toronto in the fall of 2006, is considered a litmus test for a new securities law creating U.S.-style civil liability for misrepresentations that affect stock market values.
Monday’s two-part decision permits the litigation to proceed and separately certifies a global class of investors — no small matter considering that some 80-85 percent of investors reside outside of Canada. The decision also explicitly calls the threshold for such pleadings a low one, which “will no doubt be cheered by investors, and jeered by Bay and Wall Streets,” wrote Jim Middlemiss at The Legal Post.
via Ontario Judge Certifies Global Investor Class in Landmark Decision.
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