Archive - November 1, 2007

Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)

In this employment discrimination case, defendant Lakeside sought an order from the court allowing the review of a hard drive image of a laptop computer furnished to plaintiff while he was employed at Lakeside.  After plaintiff’s counsel raised an objection to the imaging of the hard drive, Lakeside agreed not to review its contents, and the parties attempted to resolve the issue on their own.  When the parties were unable to reach agreement, Lakeside moved to compel the review of the image.

The court granted the motion in part, and denied it in part.  The court found that the plaintiff had no reasonable expectation of privacy in the contents of the laptop that was furnished by Lakeside, including emails he sent and received on his Lakeside email account.  However, the court ruled that web-based emails generated by plaintiff, and any material he created to communicate with his attorney and his spouse, were protected under the attorney-client privilege and the marital communications privilege.

The court explained that Lakeside’s employee manual was “unequivocally clear” in stating that user accounts were the property of Lakeside School, and that they were to be used for academic and administrative purposes only.  “Furthermore, where an employer indicates that it can inspect laptops that it furnished for use of its employees, the employee does not have a reasonable expectation of privacy over the employer-furnished laptop.”  There was no dispute that plaintiff received a copy of this policy and signed an acknowledgment that he read and reviewed the policy.  Consequently, the court held that plaintiff was on notice that he did not possess a reasonable expectation of privacy in the contents of his laptop, or in the emails he sent and received using Lakeside’s accounts.

The court viewed web-based emails differently:
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Verigy US, Inc. v. Mayder, 2007 WL 3144577 (N.D. Cal. Oct. 24, 2007) (Not for Citation)

In this misappropriation of trade secrets case, plaintiff had been granted leave to conduct some expedited discovery prior to the court’s hearing on plaintiff’s motion for preliminary injunction.  In addition, defendants had been ordered to preserve all evidence, including all information contained on their computer hard drives.

In this order, the court resolved plaintiff’s expedited motion to compel certain defendants to produce “bit-for-bit copies (i.e., mirror images) of all hard drives.”  The parties disagreed about how such inspection and production should proceed, and submitted differing proposed discovery protocols for the court to consider.

The court noted that, for the most part, the parties’ protocols were virtually identical, and it appeared that defendants had adopted many of plaintiff’s proposed provisions verbatim.  The main point of contention was whether defendants should be permitted an opportunity to review and object to any searches that plaintiff may wish to have the third party expert conduct.  Defendants proposed a two-tier protocol which (a) would permit discovery in areas that defendants deemed presumptively relevant; and (b) would allow plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.  Defendants expressed concern that plaintiff would propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Rule 26:

At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter "A." Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter "V" – a request which strikes this court as being patently overbroad.

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