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.

"If You Don't Have Anything Nice to Say..."

 

One of history’s most quotable women, Dorothy Parker, said, “If you don’t have anything nice to say, come sit by me.” She also said, “I don't care what is written about me, so long as it isn't true.”   

Unfortunately, few of us share Dorothy Parker’s sentiments, and with the advent of websites, blogs and other electronic storehouses of information, it has become increasingly easy to find ourselves anonymously defamed or knowingly or unknowingly defaming others. Lawsuits regarding defamation on the Internet are becoming increasingly common, and electronic discovery is critical to the prosecution and defense of such cyberspace abuse.

In one such case, Allcare Dental Management LLC v. Zrinyi, Greene, and John or Jane Does I-V, Unknown Persons, 2008 WL 4649131 (D. Idaho Oct. 20, 2008), a dental practice filed suit for defamatory statements made about their practice on a website called “Complaintsboard.com,” and also sought the identification of the anonymous posters of the statements. As part of the discovery process, they subpoenaed the provider, Cable One, seeking the identity of the Doe Defendants’ names and contact information. Since this information is protected under the Cable Communication Policy Act, disclosure of the requested information had to be requested pursuant to a court order.

In this case, the Court granted the Plaintiff’s Motion to serve their Rule 45 subpoena duces tecum on Cable One for the identity of anonymous persons who posted the alleged defamatory statements to the website, but for no other visitors to the site. The Court also required Cable One to preserve all electronically stored data responsive to the Rule 45 subpoena. Further, the Court required that a copy of its Order and the subpoena be served on all affected subscribers and/or account users, and those parties were given 14 days to file a motion to quash the subpoena. Imagine the chagrin of being served with that Order and subpoena and learning that your assumed “anonymity” is just an illusion!

The moral of this story is simple and two-fold: If you don’t have anything nice to say, don’t say it in cyberspace; and there’s no such thing as an “anonymous” posting. Or, to quote John Perry Barlow: “Relying on the government to protect your privacy is like asking a peeping tom to install your window blinds.” The illusion of online privacy is just that - an illusion.

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.


New Rule 5.2 Formalizes Privacy Protections for E-Filed Documents

The Advisory Committee on the Federal Rules of Civil Procedure recently created a new Rule that is at least tangentially related to e-discovery.  The new Rule 5.2 addresses privacy concerns for documents e-filed in federal court.  The new rule provides guidance on what information should be redacted, what may be filed under seal and how to file a single "reference list" containing all confidential information redacted from other documents.  Notably, a party waives the right to the protection of the Rule if it files its own confidential information without redaction.  While some courts, such as  the Eastern District of Wisconsin, had already adopted similar rules on a local basis, the Committee has now made them applicable to all federal civil courts.  The new Rule went into effect on December 1, 2007.