Labor And Employment Law Weekly Update (Week Of September 5, 2011)

Employee Email — When Does an Employee Have a Right to Object to a Subpoena? By Andrew B. Serwin

One of the more challenging questions regarding email is when it is appropriate to produce email content to a party in litigation. In many cases, entities that are public service providers, usually Internet Service Providers, or ISPs, cannot produce the content of email in response to a civil subpoena. Employers face similar and related issues at times when employee emails are requested in a case.

This issue usually is presented when the sender or recipient of an email objects to the production of emails. A key first issue to consider is whether the person objecting to the production of emails has a legal right or "standing" to object. In most cases, courts have found that persons who are not parties to actions do not have standing to move to quash a subpoena. However, other courts have found that third parties have standing to quash subpoenas in certain circumstances. In J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., (http://tinyurl.com/3kkjvuo) a district court found that "because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider." This type of analysis also has been applied in the social networking context. In Crispin v. Christian Audigier, Inc. (http://tinyurl.com/4x3dn53), the court found that:

... an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information. The court therefore finds that Crispin had standing to bring a motion to quash.1 Before the email content is produced, employers should assess whether there are any parties that could assert a right of privacy regarding electronic communications, and whether they have standing to assert that right in some way.

The NLRB Continues Its March to the Left By Thomas C. Pence

The NLRB interprets and enforces the National Labor Relations Act, (https://www.nlrb.gov/national-labor-relations-act) which means, among other things, that the Board decides cases...