While stories of “sexting” and cheating husbands are common fare in tabloid magazines, such salacious facts are a relative rarity in U.S. Supreme Court cases. It is equally unusual for the Supreme Court to issue opinions with the potential to touch upon aspects of electronic discovery. A perfect storm is brewing in the form of City of Ontario v. Quon, No. 08-1332, in which the Supreme Court will address a government employee’s expectation of privacy in text messages sent from his employer-issued device — including spicy text messages sent to his wife and alleged mistress. Although Quon involves a public employer, the Court’s ruling potentially could have far-reaching implications for workplace best practices in the private sector as well. In addition, Quon has the potential to extend its reach to other forms of electronic communication beyond text messages, including other types of “outlier” electronically stored information.
Text messages are just one form of outlier ESI, data that parties are more likely to overlook during the discovery process given that it may exist “out of sight” and/or “out of mind.” Common sources of outlier ESI include cellphones and personal digital assistants, voice mail systems, instant messaging systems, chat rooms and web sites. Few court decisions have addressed the preservation and production requirements of outlier ESI in litigation. Under certain circumstances, however, failure to preserve and produce outlier ESI has been held to constitute spoliation and resulted in sanctions such as an adverse inference.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]