Category Archives: technology

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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Zubulake revisited: Shifting standards in e-discovery

InsideCounsel has a very insightful article regarding the changes in Zubulake.  As previously addressed, the Zubulake cases are the leading guide posts of electronic discovery.  Nevertheless, recent case law signals potential departures from Zubulake.

InsideCounsel’s article states as follows:

 

Litigation holds 101

While the American concept of the litigation hold (also known as legal hold) received a passing reference in the advisory notes to the 2006 Federal Rule of Civil Procedure (FRCP) amendments, it was not until Zubulake, and later, Pension Committee, that courts connected the legal hold to the spoliation sanction framework.

Generally, sanctions are warranted when a party with control over discoverable information and under a duty to preserve acted with a culpable state of mind when destroying or losing relevant information. Once a party has established spoliation, a court must assess which sanction (ranging from further discovery to dismissal) aligns with the culpability of the spoliating party and the prejudice caused.

In Pension Committee, the court held that failing to issue a litigation hold is gross negligence per se. The court found that not only can relevance and prejudice be presumed when a spoliating party is grossly negligent, but that an adverse inference instruction was the appropriate sanction in that case.

Departures from Zubulake

In 2012, in Chin v. Port Auth. of New York & New Jersey, 11 plaintiff employees sued the defendant employer for alleged civil rights violations. In discovery, the plaintiffs learned that the defendant failed to implement a document retention policy, which resulted in the spoliation of at least 32 folders used to make promotion decisions from August 1999 to August 2002. The plaintiffs also learned that the defendant failed to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007, and thus argued that this inaction amounted to gross negligence. However, the court rejected the argument that a failure to institute a litigation hold automatically constitutes gross negligence per se, contrary to the rule of Zubulake.

Instead, the court ruled in favor of a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. In the end, the court upheld the district court’s conclusion that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process, as well as the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.

What does it all mean?

Chin established that, depending on the facts, if a party acts reasonably and in good faith to preserve documents, it may be off the hook for severe sanctions. However, many commentators have argued that this does not change best practices—that parties should still issue a written litigation hold in accordance with Pension Committee.

For large organizations that touch many jurisdictions (many of which still follow Zubulake), corporate counsel should not disband their litigation hold systems just yet—in fact, they probably do not want ever to disband them. The litigation hold is an incredible powerful and defensible means to preservation. Large organizations often must track many custodians storing potentially relevant information on complicated IT systems. Corporations derive substantial benefits from being able to maintain holds, as well as being able to internally track multiple simultaneous preservation obligations.

It is worth noting, however, that not every case, or company, is the same. Should a tight-knit company of a few employees in a non-complex litigation have to issue a written legal hold in order to be safe from sanctions? As case law in 2013 develops, perhaps litigants in these types of cases will take a second look at the role of the litigation hold.

A breath of “reasonable” fresh air

On the topic of preservation, case law developments are not the only item on the horizon for 2013. The discovery subcommittee tasked with developing potential FRCP rule changes has been scrutinizing the preservation topic. In one possible version amending FRCP 37, the drafters adopted a factor-based approach to determining culpability. While one factor looks at the reasonableness of a party’s efforts to preserve the information, “including the use of a litigation hold,” another factor includes “the proportionality of the preservation efforts to any anticipated or ongoing litigation.” On Nov. 2, 2012, when the Advisory Committee voted to adopt the subcommittee’s proposal, a common opinion was that even this minor reference to the litigation hold should be omitted or reverted to the commentary to underscore the factor-based nature of draft Rule 37. As we continue down the road to Federal Rule amendments, it is becoming clear that the gold standard of Zubulake may be shifting in the coming year.

via Zubulake revisited: Shifting standards in e-discovery.

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The Sedona Conference Publishes Primer on Social Media

This post is geared towards lawyers and individuals working with electronic discovery (or anyone interested in discovery in a lawsuit of social media).

The Sedona Conference just published a Primer on Social Media.  The current version is open for public comments.  The purpose of the Primer is to provide primary instruction to the bar and the bench.

via The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) : Electronic Discovery Law.

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Proposed “Cloud Computing Act of 2012”

Sen. Amy Klobuchar has introduced a new bill, the “Cloud Computing Act of 2012” (S.3569), that purports to “improve the enforcement of criminal and civil law with respect to cloud computing.”

The Cloud Computing Act seeks to amend 18 USC 1030 by purporting:

  • It is a separate offense to have unauthorized access (including exceeding the authorized access) to a cloud computing account, or even conspiring to have unauthorized access.
  • Defining “cloud computing account” as “information stored on a cloud computing service that requires a password or similar information to access and is attributable to an individual”
  • Defining “cloud computing service” as a service that “enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.”
  • The losses are (1) the value of the loss of use, information, or aggregated loss to 1 or more persons; or (2) the product obtained by multiplying the number of cloud computing accounts accessed by $500.”

As a reminder, 18 USC 1030, a person who acts or conspires to act in violation of the Act is to be

  • (1) fined or imprisoned for not more than 10 years or both, when the conviction does not occur after another offense under the section; or
  • (2) fined or imprisoned for not more than 20 years or both, when the conviction occurs after another offense

 

The problems with this proposed bill are alarming due to the vagueness of the definitions.  In employment, I can see this Act (if it goes through) being used against employees.

For example, say if your authorized access is limited to “work” use.  If an employee uses the computer network to go to a social network, how would this pan out?  The employee, in this case, uses a password to get into the network of the employer.

Or say that authorized access is limited to using email for work purposes only.  What if the employee sends a personal email or an email to an attorney using the work email?  The email account is, after all, protected by a password and it is in the alleged protected network of the employer.

Or say that authorized access is limited to accessing the email at work.  Yet, the employee and other employees, and say even management, use their smartphones to keep up with work.

I can see potential issues in employment law, where the situation does not arise out of the purported intent of the Act.  None of these cases involve a person getting into a network or service to steal information.  None of these cases involve a disgruntled employee accessing information they are not supposed to have access to.

It is my guess that if the Act gets through, there will be a need for a lot of updates on employee policies, manuals, and trainings.

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D. Minn Court Holds Defendant in Contempt (ESI)

Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4135848 (D. Minn. Sept. 18, 2012)

In this case, the Magistrate Judge recommended that an adverse inference be issued, that Defendant be held in contempt and that significant monetary sanctions be imposed upon his determination that two of Defendant’s employees had intentionally spoliated evidence by deleting certain information and by failing to reveal the existence of encrypted data.  Upon the parties’ objections, the District Court adopted in part the Magistrate Judge’s recommendation, but increased the monetary sanctions imposed.

While the details provided in these opinions are somewhat complicated, the bottom line is simple: two of Defendant’s employees were found to have intentionally spoliated evidence.  The spoliation was discovered by a forensic investigator who had been appointed by the court following Plaintiff’s first motion for sanctions.  At the time of that appointment, pursuant to an ESI protocol crafted by the court, the parties were each ordered to bear a portion of the costs of further investigation.

Briefly, the relevant incidents of spoliation included the use of wiping software by Defendant’s Director of Quality Assurance and the deletion of a PST file by the Vice President of Sales and Marketing.  The Magistrate Judge also found that the Vice President’s failure to reveal the existence of encrypted data on his laptop despite an order requiring that Defendant provide the court-appointed forensic investigator with “reasonable access to personnel and facilities,” which encompassed the custodian’s computers, amounted to spoliation:

[He] knew that an encrypted and passwordprotected [sic] volume was installed and in use on his computer, and he failed to provide any notice that such a volume existed.  Encryption software exists so that—without notice and a password—entities like CFS are unlikely to find and access the ESI stored on encrypted volumes.  Thus, the failure to provide any notice of the encrypted volume until November 2011 violated the ESI Protocol Order and amounts to spoliation of evidence.

(CFS was the court-appointed forensic examiner.)

In light of Defendant’s spoliation, the Magistrate Judge recommended that an adverse inference be imposed at trial and that Defendant be held in contempt and required to pay $25,000 to the court and $475,000 to the plaintiff.  The Magistrate Judge’s order took into account Plaintiff’s “reasonable expenses” caused by Defendant’s actions, including the significant fees of the forensic examiner.

Both parties objected.  Upon review, the District Court adopted the recommendations of the Magistrate Judge, in part, but increased the amount of monetary sanctions to be paid to Plaintiff.  The court indicated that the amount was increased for several reasons, including to better compensate Plaintiff for the significant costs of the forensic investigator and its attorneys’ fees and in light of the court’s consideration of other circumstances, such as the “significant prejudice” suffered by Plaintiff (which the District Court determined could not be mitigated to the extent indicated by the Magistrate Judge) and the fact that this was not the first sanctions order in this case.

The District Court largely rejected Defendant’s assertion that Plaintiff was “at least partially responsible” for the investigator’s “ballooning costs” (Plaintiff initially estimated the cost of the investigation would be around $10,000 + travel) and that some portion of the fees were not reasonably attributable to Defendant because of Plaintiff’s failure to timely inform Defendant or the Court that the fees would be far greater than expected.  Despite acknowledging the disparity between the estimated and final cost and that Plaintiff should have disclosed the “exploding” costs sooner, the court ultimately determined that it was largely Defendant’s conduct that resulted in the extensive fees: “It is no fault of Multifeeder that documenting the extent of British’s drive wiping was extremely time consuming.”

Accordingly, the court raised the sanction to $600,000, an amount which “represents reasonable expenses and attorneys’ fees because it encompasses much of CFS’s current unpaid invoices, at least some past paid amounts by Multifeeder to CFS, and reasonable legal fees and expenses in litigating this discovery dispute.”  The court also ordered Defendant to pay the recommended $25,000 to the court.

Indicating its reluctance to modify the previously imposed ESI protocol which ordered Plaintiff to pay a portion of the investigator’s costs, but recognizing that the fees owed could financially devastate Plaintiff absent receipt of the payment ordered from Defendant, the court ordered Defendant to make staggered payments to Plaintiff and that Plaintiff in turn pay the investigator its fees within a time certain.

A copy of the Magistrate Judge’s order is available here, a copy of the District Court’s order is available here.

via For Spoliation, Court Holds Defendant in Contempt, Orders $600,000 to be Paid to Plaintiff, $25,000 to be Paid to the Court : Electronic Discovery Law.

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Lawyers and Social Media

Wisconsin Lawyer (May 2012) has an interesting read regarding the use of social media by lawyers.  These are the excerpts that caught my eye:

8 “Don’ts” When Using Social Media

  1. Don’t talk about clients or their matters.
  2. Don’t talk to clients about their matters.
  3. Don’t run afoul of the marketing-related Rules of Professional Conduct.
  4. Don’t engage in the unauthorized practice of law.
  5. Don’t engage in conflicts of interest.
  6. Don’t give legal advice online.
  7. Don’t jeopardize your identity. Protect it.
  8. Don’t make the wrong “friends.”

Risks when using Social Media

When using social media specifically for client development or marketing, you should be aware of the following additional risks:

  • Inadvertently establishing a lawyer-client relationship;
  • Providing legal advice to a nonclient without checking for potential conflicts of interest;
  • Not having enough oversight about how the firm or lawyers in the firm are being held out to the public;
  • Making snap decisions on new client intake;
  • Violating rules prohibiting direct solicitation of prospective clients; and
  • Engaging in the unauthorized practice of law or practicing out of jurisdiction.

In a Web-based environment, confidentiality can be more easily compromised than it might be when working through more traditional communication methods. Adesso says, “There are many times when social media is not the best forum to use. Social media does not easily allow for confidential communications, and thus should not be used in conjunction with any kind of adverse communication or contact with opposing counsel. In addition, there are many channels of advertising that will reach certain clients in a way that will not work on social media. However, if social media is done properly, it can act as an excellent entree to the more sophisticated or traditional means of communicating the message.”

Confidentiality can be breached in a number of ways when operating in an electronic environment, including by:

  • Failing to back up or protect client information;
  • Leaving a computer on or unattended;
  • Failing to secure your wireless network;
  • Having inadequate security (antivirus software and a firewall);
  • Failing to remove metadata or password protect-sensitive email attachments;
  • Inadvertently using the auto-fill function when sending email;
  • Inadvertently disclosing privileged or confidential client information;
  • Disclosing information without a client’s informed consent; and
  • Failing to provide a client with an electronically stored file.
  • Engaging in ex parte communication;
  • Making deceptive requests to gather information;
  • Failing to advise clients of the risks inherent in using social networking sites;
  • Directly contacting an adverse party;
  • Leaving an electronic trail that might provide a roadmap for a legal malpractice claim; and
  • Not taking the time to ensure the legal advice you give is correct.

via Wisconsin Lawyer May 2012: Managing Risk: Lawyers and Social Media: What could possibly go wrong? | State Bar of Wisconsin.

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Protect your Email Privacy

1. Use a Strong Password. You give out your email address all the time; it’s not really private information. That being the case, the only thing protecting your account from misuse is the password. A malefactor who guesses your too-weak password gains full control of your email account. Protect your account with a strong password, especially if you use a Web-based email provider like Gmail or Yahoo mail.

2. Beware Public PCs. If you check your email on a public computer in a library or Internet café, be absolutely sure you’ve logged out before leaving. Even then, you might be leaving behind traces that could give the next user too much information about you. Follow PCMag’s advice to Use Public Computers Safely.

3. Protect Your Address. It’s true that you give out your email address every time you send a message, but there’s no need to give it to the whole world. Don’t include your email address in comments on blog posts, or in social media posts. Spammers and scammers scrape pages all the time looking for new victims.

4. Lock It Up. If you step away from your desk, lock the Windows desktop or close your email client. Otherwise a sneaky co-worker could read your mail or even reset your login password. Hold the Windows key and press L to lock the desktop instantly.

5. Don’t Be Fooled. Oh, dear. Your email provider has sent you notification of a security breach, with a link to reset your password. Don’t click that link! It’s almost certainly a fraud, designed to steal your email account password. If you have any doubts, navigate to the email provider’s site directly and double-check.

6. Use Encryption. Sometimes you just have to send sensitive information by email. To keep your data safe, save it as a document and use your word processing application’s built-in encryption, or store the document in an encrypted ZIP file. Then share the password with the recipient separately. If you need encryption frequently, try a free email encryption product like PrivateSky or Enlocked.

via Six Tips for Protecting Your Email Privacy | PCMag.com.

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Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands

Courts are becoming increasingly cognizant of the eDiscovery burdens that the information explosion has placed on organizations. Indeed, the cases from 2012 are piling up in which courts have rejected demands that sanctions be imposed for seemingly reasonable information retention practices. The recent case of Grabenstein v. Arrow Electronics (D. Colo. April 23, 2012) is another notable instance of this trend.

In Grabenstein, the court refused to sanction a company for eliminating emails pursuant to a good faith document retention policy. The plaintiff had argued that drastic sanctions (evidence, adverse inference and monetary) should be imposed on the company since relevant emails regarding her alleged disability were not retained in violation of both its eDiscovery duties and an EEOC regulatory retention obligation. The court disagreed, finding that sanctions were inappropriate because the emails were not deleted before the duty to preserve was triggered: “Plaintiff has not provided any evidence that Defendant deleted e-mails after the litigation hold was imposed.”

Furthermore, the court declined to issue sanctions of any kind even though it found that the company deleted emails in violation of its EEOC regulatory retention duty. The court adopted this seemingly incongruous position because the emails were overwritten pursuant to a reasonable document retention policy:

“there is no evidence to show that the e-mails were destroyed in other than the normal course of business pursuant to Defendant’s e-mail retention policy or that Defendant intended to withhold unfavorable information from Plaintiff.”

The Grabenstein case reinforces the principle that reasonable information retention and eDiscovery processes can and often do trump sanctions requests. Just like the defendant in Grabenstein, organizations should develop and follow a retention policy that eliminates data stockpiles before litigation is reasonably anticipated. Grabenstein also demonstrates the value of deploying a timely and comprehensive litigation hold process to ensure that relevant electronically stored information (ESI) is retained once a preservation duty is triggered. These principles are consistent with various other recent cases, including a decision last month in which pharmaceutical giant Pfizer defeated a sanctions motion by relying on its “good faith business procedures” to eliminate legacy materials before a duty to preserve arose.

The Grabenstein holding also spotlights the role that proportionality can play in determining the extent of a party’s preservation duties. The Grabenstein court reasoned that sanctions would be inappropriate since plaintiff managed to obtain the destroyed emails from an alternative source. Without expressly mentioning “proportionality,” the court implicitly drew on Federal Rule of Civil Procedure 26(b)(2)(C) to reach its “no harm, no foul” approach to plaintiff’s sanctions request. Rule 2626(b)(2)(C)(i) empowers a court to limit discovery when it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Given that plaintiff actually had the emails in question and there was no evidence suggesting other ESI had been destroyed, proportionality standards tipped the scales against the sanctions request.

The Grabenstein holding is good news for organizations looking to reduce their eDiscovery costs and burdens. By refusing to accede to a tenuous sanctions motion and by following principles of proportionality, the court sustained reasonableness over “gotcha” eDiscovery tactics. If courts adhere to the Grabenstein mantra that preservation and production should be reasonable and proportional, organizations truly stand a better chance of seeing their litigation costs and burdens reduced accordingly.

via e-discovery 2.0 » Blog Archive » Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands.

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