Privacy In A World of Discovery
Leo Arzumanyan, Law Clerk
Schwartz Semerdjian Cauley & Moot LLP
Technological innovation has paved way for many breakthroughs throughout history. However, although most people surely appreciate what can be done with the latest and greatest devices, there are certain tradeoffs we must face. Privacy matters. It likely is not a stretch to argue that most value privacy – whether it be in the form of privacy with respect to your phone, computer, personal e-mail, work e-mail, and so forth. The question then arises – how does privacy interact with e-discovery in the legal world? How does big data, which emerges as a result of technological innovations, coincide with one’s privacy during lawsuits that require a discovery process of all relevant information?
Electronically stored information (“ESI”) like documents and other tangible items, must be preserved pursuant to state and federal regulations, as well as case law. In the United States, a party is obligated to preserve all evidence potentially relevant to a legal dispute. Union Pacific R. Co. v. U.S. Environmental Protection Agency, 2010 WL 2560455 (D. Neb. 2010); Genworth Financial Wealth Management, Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010) (holding that the defendant unreasonably refused plaintiff access to potentially relevant electronic information). The evolution of technology, and thereby e-discovery, has undoubtedly expanded what exactly is discoverable. E-discovery is no longer confined to data stored on hard drives, such as emails or documents. New media forms, including audio, video, and social networking content, are also discoverable. Equal Opportunity Comm’n v. Simply Storage Mgmt., Case No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010) (requiring, by discovery order, the plaintiff to produce relevant data, including photos and videos, from social media sites, such as Facebook and Myspace).
Privacy In Context
As evidenced by a commissioned Harris Poll conducted between December 28, 2016, and January 18, 2017, the topic of privacy matters to Americans. Big data increasingly runs the world. Therefore, it is important to understand how concerns over private data impact the legal discovery process. 63% of survey respondents reported that their companies either have no written policy on checking personal email or other personal accounts while at work, or if the company does, they don’t know about it. David Horrigan, E-Discovery Trumps Privacy at California Supreme Court, 1, Relativity (July 28, 2017).
As many attorneys dealing with e-discovery know – in litigation, email retention is a big deal. The purposeful (or negligent) destruction of emails and other relevant and discoverable information can result in serious consequences. In a 2016 decision, U.S. District Judge Leonard Stark in Delaware sanctioned an electronics company $3 million in punitive sanctions and costs for the company’s unlawful deletion of emails. Id. In a similar case, a major airline faced discovery sanctions up to $2.7 million in August of 2016 for discovery failures. Id. In this day and age, data collection is growing rapidly. Smartphones have more computing power than NASA’s entire Apollo spacecraft in the 1960s. Id. According to the previously mentioned Harris Poll, 98% of employees said privacy was important to them. Id. However, what matters more is that a great majority of these employees reported that either their companies don’t have an email retention policy, or in the alternative, they don’t know about it. As a result of unclear policies, employers may be at risk during litigation.
The Case of Williams
California bucks the trend of protecting privacy by holding that broad e-discovery is warranted and necessary. In Williams v. Superior Court, (2017) 3 Cal. 5th 531, the California Supreme Court held that class action plaintiffs could get personal information in discovery despite privacy concerns. In Williams, a store employee brought a putative class action against his employer under the Private Attorneys General Act (“PAGA”) for failure to provide employees with meals and rest breaks or premium pay in lieu thereof, to provide accurate wage statements, to reimburse employees for necessary business-related expenses, and to pay all earned wages during employment. Id.
Williams sought to obtain the name, address, telephone number, and company employment history of each of Marshalls’ 16,500 California employees during a certain time period. Id. Marshalls objected arguing that it was overbroad, unduly burdensome, and an invasion of the privacy of third parties in violation of Article 1, Section 1 of the California Constitution. Id. The superior court ruled that Williams could have most information, but the court ordered that Williams could only have the information on employees from other stores if he agreed to sit for a deposition to demonstrate the merits of his case. Id. The Supreme Court granted review and rejected the lower courts’ conclusions, holding that the identity of employer’s other employees in California was relevant and discoverable, privacy concerns of other store employees did not warrant a complete bar to discovery, and that the party seeking discovery of privacy information need not always establish a compelling interest or compelling need. Id.
The Williams court further went on to expand the scope of e-discovery by noting that “[w]e recognize that in a particular case there may be a special reason to limit or postpone a representative plaintiff’s access to contact information for those he or she seeks to represent, but the default position is that such information is within the proper scope of discovery, an essential first step to prosecution of any representative action.” Id. at 483. (emphasis added). In reference to Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, the court stated that “[c]ourts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” Id. at 494.
Williams shows that California courts seem to be in opposition of the growing global trend to protect personal privacy. Horrigan, supra at 1. As Horrigan notes, “[b]road-based, American style e-discovery carried the day as the California Supreme Court rejected [ ] privacy objections . . . Plaintiffs will most likely hail the decision as a protection . . . to get to the truth and obtain justice. Privacy advocates will . . . see the court’s decision as a judicial green light for e-discovery fishing expeditions in California.” Williams allows for much debate over the importance of privacy concerns versus transparent discovery throughout the litigation process.
How employers handle data and privacy can have serious consequences. Given how ESI is constantly tracked, it would be wise for employers to put in some sort of email retention policy. As evidenced by Williams and cases that have followed, California courts continue to broaden the scope of e-discovery. Although many see this as a reduction of privacy interests, the courts see it as a healthy continuation of our adversarial legal system.