As discussed in detail in last week’s Telegraph article (click here to access), the United States Supreme Court’s decision in Riley v. California on cell phone privacy provides a clear indication that the highest court of this nation deems cell phone privacy worthy of substantial legal protection. Basically, the Court held that police generally may not, without a search warrant, search the digital information on cell phones from an individual who has been arrested.
That decision will have little direct impact in the employer / employee relations, particularly as to private employers, yet it gives a clear signal that the Supreme Court recognizes that an individual’s digital personal information needs to be protected. With that said, in litigation between employers and employees, the digital information within a cell phone is often discoverable. By way of example, in a sexual harassment case, the texts between the accuser and the accused along with texts from both of them to their respective friends can also provide compelling evidence supporting, or contradicting, the claims.
For an employer that knows a claim is going to be made against it, it should communicate with its attorney about the obligation and procedure to preserve all possibly relevant information including such texts that might be on the employee’s cell phone. If electronic information on a cell phone or elsewhere is available at the time that a claim is known, and it is later destroyed so that it does not become discoverable by the other side, the Court may issue sanctions against the party that allowed the electronic information to be destroyed including, but not limited to, allowing the jury to draw a negative inference that the destroyed information would be hurtful to the party that allowed it to be destroyed or possibly even ruling in the favor of the party that did not destroy the evidence.
It is very important to keep in mind that judges in this electronic age expect both the employer and the employee bringing the claim to keep and preserve its discoverable evidence including, but not limited to, electronic information such as emails and texts. For employees, this includes their social media pages. For example, employees who clean up their Facebook or other social media account to remove information that could detract from their claim that someone harassed them at work, that they are sensitive to sexually explicit comments, or that they are currently suffering emotional distress, could subsequently in their law suit face sanctions for spoliation of evidence from a judge. Deleting electronic information is akin to shredding documents, although some deleted of electronic information a good forensic expert may be able to retrieve.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].