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Wednesday, July 2, 2014

Supreme court ruling has little effect on employer-employee relations, especially when it comes to sexual harassment lawsuits

J. Daniel Marr

As discussed in detail in last week’s Telegraph, the United States Supreme Court’s decision in Riley v. California on cellphone privacy provides a clear indication that the highest court of this nation deems cellphone privacy worthy of substantial legal protection.

Basically, the court held that police generally may not, without a search warrant, search the digital information on cellphones from an individual who has been arrested. ...

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As discussed in detail in last week’s Telegraph, the United States Supreme Court’s decision in Riley v. California on cellphone privacy provides a clear indication that the highest court of this nation deems cellphone privacy worthy of substantial legal protection.

Basically, the court held that police generally may not, without a search warrant, search the digital information on cellphones from an individual who has been arrested.

That decision will have little direct impact on employer-employee relations, particularly as to private employers. Yet, it gives a clear signal that the Supreme Court recognizes that an individual’s digital personal information needs to be protected.

With that said, in litigation between employers and employees, the digital information within a cellphone is often discoverable. By way of example, in a sexual harassment case, the texts between the accuser and the accused along with texts from both of them to their respective friends also can provide compelling evidence supporting or contradicting the claims.

For an employer that knows a claim is going to be made against it, it should communicate with its attorney about the obligation and procedure to preserve all possibly relevant information, including such texts that might be on the employee’s cellphone. If electronic information on a cellphone or elsewhere is available at the time that a claim is known, and it is later destroyed so the other side cannot use it, the court may issue sanctions against the party that allowed the electronic information to be destroyed, including, but not limited to, allowing the jury to draw a negative inference that the destroyed information would be hurtful to the party that allowed it to be destroyed or possibly even ruling in the favor of the party that did not destroy the evidence.

It is very important to keep in mind that judges in this electronic age expect the employer and the employee bringing the claim to keep and preserve its discoverable evidence, including electronic information such as emails and texts. For employees, this includes their social media pages.

For example, employees who clean up their Facebook or other social media accounts to remove information that could detract from their claim that someone harassed them at work, that they are sensitive to sexually explicit comments, or that they are currently suffering emotional distress could subsequently in their lawsuit face sanctions for spoliation of evidence from a judge. Deleting electronic information is akin to shredding documents, although some deleted electronic information may be retrievable by a good forensic expert.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. whose legal practice includes counseling businesses and businesspeople, including professionals, on a variety of legal issues and advocating on their behalf. Marr is licensed and practices in New Hampshire and Massachusetts. He can be reached at dmarr@nashualaw.com.