You are here: Home / Archives for question

Reviewing employees’ email | Lexology

May 11, 2010 By Leave a Comment

Quirky Question # 144:

I’m confused. I thought we could review our employee’s email communications when sent out on our company’s equipment. Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system. I’m now being advised that we cannot do so. Can you offer any guidance?

My Analysis:

Your question illustrates the ongoing legal evolution in areas where advancing technology intersects employment law or affects other facets of legal analyses – here, the attorney-client privilege. Like technology itself, the law is developing and changing quickly in areas affected by technological advancements.

With respect to the issue of whether a company may review email communications of its employees, including even email communications between your employee and his/her outside counsel, I have written on this subject twice before. Happily, I am pleased to report that the advice I gave two years ago has been validated and reinforced by a recent decision from the Supreme Court of New Jersey.

The “confusion” you may be experiencing regarding this issue likely reflects the fact that this continues to be an area of the law where courts are providing mixed messages to litigants and their lawyers alike. Unsurprisingly, not all judicial decisions have adopted a uniform approach to the question of whether email communications to counsel, when sent on a company’s communications systems or computers, are protected by the attorney-client privilege.

One case that has received considerable recent attention and commentary is Stengart v. Loving Care Agency, Inc., et al., decided by the Supreme Court of New Jersey on March 30, 2010. Stengart is a thoughtful opinion and highlights many of the issues that you should consider in evaluating your unique fact pattern.

via Lexology – Reviewing employees’ email.

Related articles by Zemanta
Filed Under: From The News Tagged With: , , , , , , , , , , , , , ,

Will Data Protection Laws Ever Catch Up To New Technology? : Connecticut Business Litigation Blog

May 4, 2010 By Leave a Comment

That was the question posed in an email newsletter I received today from the International Association of Privacy Professionals.   I am a member of this group out of personal interest and to to stay on top of issues related to privacy laws and technology.   One of the benefits of belonging to this group is that I get email newsletters with summaries of new laws, regulations, and lawsuits dealing with privacy issues from all over the world.

Today’s email posed the question in the title of this post and featured an article from the New York Times by Natasha Singer called ”Shoppers Have No Secrets.”   The article details the technology of “behavioral tracking” by retail and advertising businesses and how the Federal Trade Commission (FTC) is playing catch up when it comes to regulating this technology.

Online behavioral tracking has been a hot button issue for both businesses and privacy rights groups for a few years.  Natasha’s article lists several types of new tracking to include:

Cameras that can follow you from the minute you enter a store to the moment you hit the checkout counter, recording every T-shirt you touch, every mannequin you ogle, every time you blow your nose or stop to tie your shoelaces.

Web coupons embedded with bar codes that can identify, and alert retailers to, the search terms you used to find them.

Mobile marketers that can find you near a store clothing rack, and send ads to your cellphone based on your past preferences and behavior.

The article is a very good summary of the issue and has links to advocacy groups on both sides of the debate.  The article also highlights the differences between European and US based privacy laws. In general, the EU is far more advanced and stringent when it comes to personal data protection.

In the US, the FTC publishes guidelines and takes enforcement action under its authority to regulate unfair trade.  There are also the states’ Attorney Generals and class action and individual lawsuits.  Nevertheless, to answer the question I posed in this post, it is clearly a “NO” in the US.   Data protection laws will not catch up to new technology. At least, not anytime soon.

via Will Data Protection Laws Ever Catch Up To New Technology? : Connecticut Business Litigation Blog.

Filed Under: From The News Tagged With: , , , , , , , , , , , , , ,

Microsoft welcome HTC/Apple patent battle – SlashGear

March 15, 2010 By

With several Windows Mobile devices named in Apple’s patent suit against HTC, you’d be forgiven for expecting Microsoft to have a few words of quiet support for their hardware partners.  However it seems Microsoft are quite looking forward to a general battle; speaking at an IP convention last week, Brad Smith, the company’s general counsel and senior vice president told amassed lawyers that ”the fact that there’s litigation in this area is not necessarily a bad thing.”

It seems Microsoft are viewing the ongoing litigation as an opportunity to finally settle the pesky question of who owns what multitouch IP, and what other companies are allowed to do with the multi-finger technologies.  To Smith’s mind, “the question of the day is, how will patent licensing work for the software and other information-technology layers that actually make up an increasingly large percentage of the value of a smartphone”; he went on to suggest that 5-10 percent of a smartphone’s cost could be royalty fees for these technologies within the next 3-5 years.

Smith saved some scorn for Google’s copyright settlements over book publishing, describing them as “not the way litigation is supposed to work.”  In fact after the event, when asked whether Microsoft would get more involved with HTC’s case, he seemed to obliquely critique the search giant’s quickness to speak up in the handset manufacturer’s favor.  ”I think it’s premature to endorse or offer any other reaction to it” he told reporters.

via Microsoft welcome HTC/Apple patent battle – SlashGear.

Filed Under: Tech Bytes Tagged With: , , , , , , , , , , ,