The e-workplace: Balancing Privacy and Information Security to Manage Risks. Overview. Employee Monitoring

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1 The e-workplace: Balancing Privacy and Information Security to Manage Risks Michael W. Droke, Partner Dorsey & Whitney LLP (206) Overview Navigating Risks Arising in the Electronic Workplace: Employee Monitoring Social Media New Trends in Tracking Employees New Trends in Tracking Time (and New Options for Tracking Employers) Electronic Devices in the Workplace Bring Your Own Devices Electronically Stored Information ( ESI ) in Litigation 2 Employee Monitoring Key HR issues / legal risks: Use of social media in recruiting / hiring (discrimination) Vicarious liability for offensive / harassing posts Investigating complaints made through social media or about co-workers activities on social media Discovery of information that may trigger obligations (disabilities, safety concerns) Discipline and firing based on social media activity 3 1

2 Employee Monitoring: Social Media Social Media: Your Employees Are Talking Should You Listen In? 4 Employee Monitoring: Social Media Issues with monitoring employee social media activity: Invasion of privacy Wiretap Act Electronic Communications Privacy Act Stored Communications Act Bar opinions regarding surreptitious friending State statutes circumscribing ability to monitor: California Illinois Maryland 5 Employee Monitoring: Recordings Washington is a 2-party consent state. RCW Unlawful to record or intercept any private communication or conversation by device without first obtaining consent of all persons engaged in the conversation Other 2-party consent states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania 6 2

3 Employee Monitoring: Recordings Announcement of recording or intercepting communications in employee handbooks. RCW (3). Exception for threats of extortion, blackmail, or bodily harm. RCW (2)(b). What about unlawful harassment? Washington courts have yet to decide. 7 Employee Monitoring: Social Media When Employees Use Social Media to Talk About You: How Much Control Can/Should You Exercise? 8 Employee Monitoring: New Trends in Employee Tracking New Trends in Tracking Employees: Your Employees Are Walking Should You Follow Them? Vehicle tracking On-site equipment tracking Off-site equipment tracking 9 3

4 Employee Monitoring New Trends in Tracking Time: DOL Timekeeping App U.S. Department of Labor ( DOL ) has launched free app to help employees track hours and determine wages owed Secretary of Labor Hilda L. Solis: "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay. Future Trends in Tracking Employers: DOL App Contest Winners What s the Beef? Tracks information about unsafe, unfair workplaces Job Tracker Tracks companies that have exported jobs overseas or broken laws protecting workers 10 Bring Your Own Bring Your Own The Line Between What s Yours and What s Mine 11 Bring Your Own Bring Your Own Beware of California! 12 4

5 Bring Your Own Employer Checklist: Specify precisely what devices are permitted for work use Establish policy governing security, confidentiality, and employer s right to access regarding all devices used for work purposes Establish policy circumscribing support offered for BYODs Consider whether some reimbursement must occur Establish policy making clear who owns what apps and data Establish policy outlining procedure for exiting employees (e.g., removal of access tokens, proprietary applications, and confidential data) Establish policy governing acceptable/authorized use when using VPN or accessing other company systems U.S.C Enacted in 1984 Federal computer crime statute including data theft Civil remedy in 1994 amendment Computers used in interstate commerce Amended in 2001 and 2008 Computers in foreign countries Provides for damages and injunctions 14 General Elements of a CFAA Claim: Protected computer Lack of authorization or exceeding authorization to access computer Theft of information or anything of value Damage to data permanent $5,000 loss Limited to economic damages Compensatory damages Two-year statute of limitations 15 5

6 Key Issue is Unauthorized Access Section 1030(a)(2)(c): Whoever intentionally accesses a computer without authorization OR exceeds authorized access and thereby obtains information from any protected computer commits a crime 16 Ways to Establish Lack of Authorization: Violating company policies and rules Exceeding expected norms of intended use Employee terminating agency relationship with employer by disloyal conduct Accessing for non-business purpose 17 United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) CFAA does not extend to violations of use restrictions but is limited to circumvention of technological barriers Concern over criminalizing common violations of terms of use and rules United States v. Tolliver, 451 Fed. Appx. 97 (3rd Cir. Sept. 15, 2011) Former bank teller provided customer account information to check runners who cashed fraudulent checks Although no violation of company policies, court found sufficient evidence to convict where employee did not have a business purpose to access the customers accounts 18 6

7 Pulte Homes, Inc. v. Laborers Int l. Union of N. Am., 648 F.3d 295 (6th Cir. 2011) During labor dispute, union bombarded employer s computer systems with s and voic s Court found allegations of unauthorized access sufficient: transmissions diminished Pulte s ability to use systems and union intended to cause damage Int l. Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006) Employee destroyed data on company computer Court held authorization based on law of agency: authorization terminates with disloyal act to employer 19 Employer Checklist: Execute appropriate employee agreements Confidentiality/non-disclosure agreements Post-employment restrictive and anti-raiding covenants Agreement to search personal computers Permissions regarding use of the computers Implement appropriate policies and procedures Handbook Code of Conduct Terms of Use on Company Website (BEWARE of NLRA) Policies addressing international rules Protections related to access Coordination of document retention and e-discovery 20 ESI in Litigation Electronically Stored Information ( ESI ) in Discovery: How Deep Does the Rabbit Hole Go? 21 7

8 ESI in Litigation Import of Managing ESI at All Litigation Stages: Issuing proper hold at outset of litigation (or threatened litigation) and updating as needed Preparing for meet and confer with opposing counsel Managing collection of ESI Processing and producing ESI Authenticating as exhibits at trial 22 ESI in Litigation From IM to Exhibit 1 : When I sent the instant message, I didn t think it was going to be Exhibit #1 at my deposition.... Educate employees on the risks involved in careless communications 23 ESI in Litigation Privilege in the Electronic Age: Federal Rule When made in a federal proceeding or to a federal office or agency, disclosure does not operate as waiver if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error 24 8

9 ESI in Litigation In re Pradaxa Prods. Liab. Litig., 2013 WL (S.D. Ill. Dec. 9, 2013): Highlights issues with ESI in discovery, including failure to place a timely hold and issue incremental holds Involved failure to preserve business-related text messages from cell phones of certain custodians 25 ESI in Litigation Mastr Adjustable Rate Mortgages Trust 2006-OA2 v. UBS Real Estate Secs. Inc., 2013 WL (S.D.N.Y. Oct. 23, 2013): Analyzes when duty to preserve arises, what constitutes an adequate hold, and when sanctions are warranted Found a failure to implement a timely hold, but denied sanctions Despite not suspending auto-delete and document-destruction policies, each custodian met with counsel to discuss retention requirements Self-selection of was not evidence of bad faith where counsel monitored compliance Highlights import of involving counsel in early in the process! 26 ESI in Litigation Logtale, Ltd. v. IKOR, Inc., 2013 WL (N.D. Cal. July 31, 2013): Defense counsel failed to ensure client conducted thorough and appropriate document searches Rule 26(g) places an affirmative obligation on an attorney to ensure that a client s search for responsive documents and information is complete. Where counsel notices obvious gaps in the production of documents by his client, he is obligated to make reasonable inquiry as to the thoroughness of that search. Defendants and their attorneys each ordered to pay part of attorneys fees spent resolving discovery issues 27 9

10 ESI in Litigation Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. May 29, 2008): Considered a benchmark opinion offering guidance on how to avoid privilege waiver and use of search terms States that parties must: Meet and confer regarding search terms and be aware of search methodologies Apply sampling techniques to vet terms, and Be prepared to submit an affidavit regarding the search approach Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514 (D.N.M. 2014): Rule 34 requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI 28 QUESTIONS? Michael W. Droke

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