Tag Archives: confidentiality

Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

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July 22, 2013 · 13:45

NLRB Overrules Anheuser-Busch, Favors Balancing Test on Witness Statements

The National Labor Relations Board (NLRB) on Piedmont Gardens, 359 NLRB No. 46, overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation.

By overruling Anheuser-Busch, 237 NLRB 982 (1978), and applying instead the Detroit Edison balancing test, the NLRB found that respondents violated the NLRA by failing to provide the witness statements.  In the Detroit Edison balancing test, the board will balance the union’s need for relevant information against the legitimate and substantial employer’s interest in keeping information confidential.

via Adjunct Law Prof Blog: NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements.

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Recent Notable NLRB decisions

This is a really good article I came across —-

 

Recent Notable National Labor Relations Board Decisions

By James Hays and Rebecca Hirschklau

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.

A. Confidentiality Directives During Internal Investigations
In Banner Health Systems d/b/a Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the National Labor Relations Board (“NLRB”) declared that a blanket statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers was in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) as restrictive of an employee’s rights arising under Section 7 of the NLRA. [1]

In Banner Health Systems, an employee made a complaint concerning instructions he had received from his supervisor that he felt were not proper and would endanger patients. After the employee had made the complaint, he was told by the human resources consultant not to discuss the matter with his coworkers while the employer was investigating the complaint. The Administrative Law Judge (“ALJ”) found, among other things, that this prohibition was not in violation of Section 8(a)(1), the NLRB disagreed.

While it is generally a standard investigative protocol to advise an interviewee to keep the subject matter of the interview confidential during the investigative process, the NLRB found that the employer had failed to show that the desire for confidentiality out-weighed the employee’s Section 7 rights. Rather, the NLRB held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation: “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.”

In light of the NLRB’s Banner Health Systems, decision, employers should be aware that mere protection of the investigation may no longer be sufficient to justify a blanket prohibition. Instead, an employer must make a case-by-case, witness-by-witness, determination of the above four factors before prohibiting an employee from discussing the investigation and/or complaint with his/her coworkers. Individually analyzing these four factors should ensure that the prohibition on discussion will be justified.

B. Employment At-Will Statement in Employee Handbook Acknoweldgement

In American Red Cross Arizona Blood Services Region and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.

In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.

Analyzing the language in the handbook acknowledgment form under the two-step inquiry utilized for determining whether an employer’s rule violates the NLRA, the ALJ found that “in his view” there was no doubt that employees would reasonably construe the language to prohibit Section 7 activity. The ALJ found that the acknowledgment form was essentially a waiver in which an employee agrees that his/her at-will employment can never change, thereby relinquishing any rights to advocate concertedly, whether represented by a union or not.

While it remains to be seen whether this case will be reviewed by the NLRB, employers should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms. One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to the language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer should surface and/or simply omitting any reference regarding the permanence of the at-will status.

 


[1] Section 7 provides that “[e]mployees shall have the right to self-organization, to for, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

 

 

via Labor Employment Law Blog: Recent Notable National Labor Relations Board Decisions.

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Union Relations Privilege

Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:

The Court held that “[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State’s union employees a union-relations privilege.”  The reasoning employed by the Court – that “the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee” and that recognizing a privilege “harmonizes [the state labor relations act]’s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules” – should be useful in other states and in other settings where this issue frequently arises.

I agree with Mich that this is a “major decision.” And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).

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ABA Model Rules and Technology

The ABA Commission of Ethics has submitted proposals for amendments for the Model Rules, in order for the rules to adapt to the changing technology environment.  These changes affect confidentiality, competence, client development, lawyer mobility, and outsourcing.

These amendments will be presented at their August meeting.  To get more information about these changes, please click on the link below.

via ABA Commission on Ethics 20/20 | ABA Board of Governors / Commission on Ethics 20 20.

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Ethics and Cloud Computing

I came across this post regarding ethics and the use of cloud computing by attorneys.  The post is as follows:

The Massachusetts Bar Association has issued an ethics opinion concluding that lawyers may use cloud services to store and synchronize digital files containing client information, provided the lawyer takes reasonable measures to ensure that the service’s terms of use and data-privacy policies are compatible with the lawyer’s professional obligations. However, lawyers should not use cloud services for clients who expressly request that their documents not be stored online and lawyers should not store “particularly sensitive” information in the cloud without first obtaining the client’s express consent, the opinion says.

MBA Ethics Opinion 12-03 was drafted by the MBA’s Committee on Professional Ethics and approved by the association’s House of Delegates on May 17, 2012. The MBA is not the official lawyer-discipline board in the state, so its ethics opinions are advisory only.

Even so, the MBA’s opinion adds to the growing and unanimous list of lawyer-ethics panels that have concluded that lawyers may ethically use cloud applications and services, provided they take reasonable precautions to protect the confidentiality and security of the data. (See our earlier post: Two New Legal Ethics Opinions Suggest Clear Skies Ahead for Cloud Computing.)

This brings to 11 the number of states that have ruled on the ethics of cloud computing. In addition to Mass., the other opinions are:

Notably, all of these states agree that the use of cloud computing is ethical.

via Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers.

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