E-Discovery Update: When Personal And Work Data Collide

In the modern world, employees routinely receive work-related data on personal mobile devices, such as smartphones and tablets, and access personal data on work-owned devices. This convenience has become so commonplace that employers often do not think of the implications of collecting relevant data from these personal devices or incidentally collecting personal data from work devices when litigation arises or when the employee's conduct is in question.

The United States Supreme Court has weighed in on a government employee's right to privacy in the context of personal data on a mobile device. See City of Ontario, California v. Quon, 560 U.S. 746, 750 (2010). In City of Ontario, Quon was a police officer in possession of a department-issued pager for text messaging. Id. at 751-53. Quon was aware that the pagers were subject to the city's computer policy providing that employees had no expectation of privacy in their usage of the device. Id. Quon and a few other officers' monthly text messaging routinely exceeded the city's plan. Id. The city made the decision to collect the officers' text messages to determine if the city plan was too low or if the overages were due to personal messages. Id. A review of Quon's text messaging on the pager resulted in disciplinary proceedings. Id.

Quon argued that the review of his text messages was a violation of his Fourth Amendment rights. The court concluded that the Quon search was conducted for a legitimate work-related purpose (to evaluate the text-messaging plan limits) and that it was reasonable in scope. Id. at 764.

Stengart v. Loving Care Agency, Inc. , 201 N.J. 300, 307 (2010), is another case where an employee's right to privacy on a work-issued device was examined, although in the context of a non-government employer. In Stengart, the plaintiff communicated with her personal attorney on her work laptop through a web-based, password-protected, personal email account. Id. After Stengart left the company and filed an employment discrimination suit against it, the company performed a forensic analysis of Stengart's computer and recovered some of the attorney-client-privileged emails. Id. The company took the stance that Stengart had no expectation of privacy on the work computer due to its computer usage policy and considered the attorney-client privilege waived. Id.

The Stengart court stated that a "plaintiff must establish that the intrusion would be highly offensive to the ordinary reasonable...