Love Doesn't Conquer All - in Cyberspace

Ah, l’amour. With Valentine’s Day upon us, our thoughts turn to hearts, flowers, chocolate and….texting? When George Bernard Shaw said, “The perfect love affair is one which is conducted entirely by post,” one doubts that Mr. Shaw could have ever imagined that the “post” would evolve to allow electronic, nearly instantaneous, communication about affairs of the heart, nor is it likely he would consider the dangers of electronic communication romantic. 

One couple’s use of text messages to communicate during their affair led to public humiliation, fines and jail time. Tresa Baldas, writing in the National Law Journal, reports that on Tuesday, January 7, Christine Beatty - the former top aide to Detroit’s ex-mayor Kwame Kilpatrick - was sentenced to 120 days in jail and ordered to pay $100,000 in restitution for her role in a text-messaging scandal that put her boss - and alleged lover - behind bars. Mayor Kilpatrick’s administration had been accused of retaliation against police officers who discovered Ms. Beatty’s and Mayor Kilpatrick’s affair. Text messages between the two were admitted into evidence and proved that Kilpatrick and Beatty had lied about their affair and that they sought to mislead the jury regarding the retaliatory actions taken against the police officers. The trial cost the City of Detroit $8.4 million, and both Beatty and Kilpatrick were ultimately charged with felonies including perjury and obstruction of justice. Their text messages were published in the Detroit Free Press.

 

Text messaging is discoverable, as lamentably learned late by the amorous couple. If it’s something you wouldn’t want your mother to see - or wouldn’t want published in the Detroit Free Press or anywhere else - think twice before texting it.   As Earl Warren said, “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Don’t be the one whose secrets in the area of “l’amour” are front page news, fodder for the water cooler gossip groupies, or worse - a source of humiliation and liability.

Employer Policy Regarding Email for Personal Use Trumps Attorney-Client Privilege

 A recent New York appellate court decision offers some guidance on the interplay among an employer's right to monitor email traffic, an employee's expectation of privacy in their email and the attorney-client privilege.  In a decision by the Supreme Court for New York County, the Plaintiff, Dr. Scott, was fired by Beth Israel Medical Center and sued for $14 million in severance payments.  Dr. Scott got a bit ahead of himself, though, and sent several emails about the impending suit to his lawyers while still employed by the hospital, using his work email account and a hospital computer.  When the hospital informed his attorneys that it had the emails, Dr. Scott moved for a protective order preventing their use in litigation.

The question, then, was what took precedence, the attorney-client and work product privileges, or the hospital's email policy, which provided that the hospital's email system was not for personal use and that the hospital reserved the right to access emails at any time.

The court found that "A 'no personal use' policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of privacy," and the combined effect "is to have the employer looking over your shoulder every time you send an e-mail."  Thus, the court held that the emails were not protected, and were properly discoverable in litigation.  The full decision appears here: Scott v. Beth Israel Medical Center.


Electronic Communication: Not just e-mail anymore

When a preservation order specifies that "electronic communication" is to be preserved,  there is a common misconception that this phrase refers only to e-mail correspondence.  Not so, my friends.  There are a bevy of other versions of electronic communication that are potentially relevant to the standard forensic collection process.

They include:

  • Instant message communications (Yahoo! Messenger, MSN Messenger, Google Talk, AOL Instant Messenger and Skype, to name a few.)
  • SMS or Text Messaging (not just for teenagers anymore.)
  • Voice over Internet Protocol (VoIP)
  • Fax communications directly sent and received on a company's computer
Companies should be sure to make their computer forensic expert aware of what third party software has been installed and used on company computers so that all relevant electronic communications can be secured and preserved. For a full analysis of the importance of securing all types of electronic communication, see this helpful article from Metropolitan Corporate Counsel.