Articles Posted in ESI

Owen H. Laird, Esq.

Over the past week, Apple Inc. and the United States Government have been locked in a dispute over access to information on the iPhone of Syed Rizwan Farook, one of the assailants involved in the mass shooting in San Bernardino, California late last year. The F.B.I. and the U.S. Department of Justice want Apple to enable them to access information on the phone to facilitate the government’s investigation of the shooting, while Apple refuses to do so on the grounds that it would weaken the security and privacy of all other iPhone users.

Our interest in the story is not related to search warrants or the fourth amendment, but rather how the story touches on ever-increasing employer access to employee communications.   The individual in question was an employee of the San Bernardino County Department of Public Health, and the iPhone at the heart of the dispute was owned by the county and provided to Mr. Farook as a county employee. Millions of employees in the United States communicate using employer-provided cell phones, desktop computers, laptops, or tablets, and many more connect to the internet at work on their own personal electronic devices using the employer’s Wi-Fi. While the vast majority of these communications are not made in the furtherance of criminal activity, many may concern disputes between the employer and the employee.

Ciera Ambrose and Edgar M. Rivera, Esq. 

To show employment discrimination, Plaintiffs often rely on communications between them and their employer. Because email is the primary mode of communication in professional settings, often the only evidence of discrimination is contained in an email. For example, emails may contain correspondence between company decision-makers engaging in discriminatory practices. Without such emails, Plaintiffs lose the opportunity to fully present evidence of their employers’ bad acts.

Rule 26 of the Federal Rules of Civil Procedure reflects email’s important role in communication, requiring parties to a lawsuit to have access to each other’s electronically stored information (“ESI”). Examples of ESI include emails, instant messaging chats, documents, accounting databases, CAD/CAM files, Web sites, and any other electronic information that could be relevant evidence in a lawsuit.