On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals held that a police officer had a reasonable expectation of privacy in the contents of his text messages (See Quon v. Arch Wireless Operating Co., CV-03-00199, 9th Cir. June 18, 2008). Police officer Jeff Quon filed the action against his employer, City of Ontario, and its pager service provider, Arch Wireless, alleging a violation of his right to privacy and the Stored Communications Act.  The allegations arose from the City's request to Arch Wireless for the text-message records related to officers who exceeded the department's monthly text allotment of 25,000 characters per user.  The City's review of Quon's text messages revealed private and sexually-explicit conversations in violation of departmental policy.

While generally an employee cannot reasonably argue that they have an expectation of privacy where the employer has established a reasonable regulation or policy discouraging employees from storing personal data on their work computers, in this case, the officer's supervisor repeatedly assured him that his text messages would not be reviewed so long as he paid for any overages.  Thus, the employer's policy was not the "operational reality" at the police department.

The Court further held that the fact a third-party service provider could access the contents of the messages for its own purpose did not diminish the officer's privacy rights without some type of formal notice.  According to the Court, this was especially true given the fact that a user would not expect a service provider to monitor their text messages or turn them over to the user's employer without the user's consent.  Once the Court determined that the officer had a reasonable expectation of privacy, the Court found that the police department's search (i.e. obtaining and reviewing the officer's text messages) was unreasonable given the availability of less reasonable alternatives.  The Court further found that Arch Wireless violated the Stored Communications Act which prohibits providers of communications services from divulging private communications to certain entities and/or individuals.

In, Carter Bryant v. Mattel Inc, (Case No. 2:04CV9049 C.D. Cal.), the court has decided that the jury will hear testimony that the Defendant Carter Bryant used a software program entitled, "Evidence Eliminator."   Bryant and his former employer, MGA Entertainment, are accused of infringing Mattel's copyright in its highly successful Barbie doll line.  Bryant is the creator of the popular Bratz dolls.  Mattel alleges that the concept for the doll came while Bryant worked for Mattel in 2000.  Bryant settled with Mattel, but MGA is contesting the allegations during an ongoing federal jury trial in Riverside, California.

Earlier this week, the judge ruled that the jury could hear evidence regarding Bryant's use of "Evidence Eliminator." Mattel alleges that Bryant used the software program to destroy potentially relevant computer files. Bryant apparently loaded the program on his computer prior to turning it over to Mattel investigators.

In Victor Stanley Inc. v. Creative Pipe, Inc., MJG-06-2662 (D. Md. May 29, 2008), the court ruled that defendants had waived the attorney-client privilege to 165 electronically stored documents inadvertently produced by defendants.  Defendants took a two tiered approach to reviewing potentially privileged documents. First, defendants used seventy (70) keyword-search terms to conduct a privilege review of electronically stored information.  However, a great majority of the documents (33 of 38 gigabytes) were not in a text-searchable format and, according to defendants, were not searchable by keyword. Second, defendants conducted a limited manual search on the remaining electronic files.

The court, after balancing certain factors to determine whether defendants' inadvertent production waived the privilege, held that the defendants did not take adequate precautions to protect the information from disclosure.  The court held that the defendants have failed to demonstrate that the keyword search they performed on the text-searchable ESI was reasonable.  Defendants neither identified the keywords selected nor the qualifications of the person who selected them to design a proper search; they failed to demonstrate that they conducted quality-assurance testing; and when their production was challenged by the plaintiff, they failed to carry their burden of explaining what they had done and why it was sufficient.

Nor did the court entertain defendants' complaint about the volume of ESI, "defendants were aware of the danger of inadvertent production of privileged/protected information and initially sought the protections of a non-waiver agreement . . . had they not voluntary abandoned their request for a court-approved non-waiver agreement, they would have been protected from waiver."  Defendants had sought a clawback agreement to protect the attorney-client privilege in the event of an inadvertent production, but later abandoned their efforts after the court gave them more time to review the documents.

In U.S. v. Graham, 2008 WL 2098044 (S.D.Ohio May 16, 2008), the Court granted defendants' motion to dismiss a criminal indictment on the grounds that their rights under the Speedy Trial Act were violated due to the prosecutor's delay in producing electronic discovery.  The court noted that the case was particularly complex due to an "unprecedented volume of discovery turned over by the government - approximately 1.5 million documents, 300 videotapes, 500 recorded conversations, 90 hard drives of computers, and 3,000 diskettes."

The Court held that in a matter of this complexity and magnitude, the government could not remain inert in the face of large volumes of unsorted discovery materials.  Nor could the government be permitted to refuse to share databases and search engines with defense counsel.  "The taxpayers should not be required to fund two separate means for managing and searching electronically recordable data - one for the government and one for the defense." The court also noted that the government should have produced electronic information in a virus-free, non-corrupt format.

In Columbia Pictures v. Bunnell No. 2:06-cv-01093 FMC-JCx., the motion picture studios walk away with a $111 million judgment for copyright infringement against the now defunct file-sharing web site TorrentSpy.com.  The judgment, filed this week in U.S. District Court in Los Angeles, fined Valence Media, LLC, the web site operator, $30,000 per violation for over 3,400 movie and tv show downloads.  Valance has reportedly filed for bankruptcy protection in the United Kingdom and is seeking to stay the judgment.

In an earlier ruling, U.S. District Court Judge Florence Cooper, affirming the Magistrate Judge's ruling, held that a computer's random access memory (RAM) constituted electronically stored information and was discoverable. (245 F.R.D. 445 (C.D. Cal. 2007).

According to published reports, Detroit Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty continue to deny an intimate relationship as more damaging text messages between the two are released to the public.  Many of the emails sent in 2002 and 2003 allegedly provide further evidence that the two discussed their intimate relationship, possible marriage and the forced ouster of a police officer investigating the pair. In a September 2002 message, Beatty wrote, "I have wanted to hold you so badly all day, but I was trying to stay focused on work. So, I promise, not to keep you longer than 15 minutes."  On April 8, 2003, she wrote, "You told me that you would be my boyfriend every day until I was your wife." In another message later that month she calls Kilpatrick an "amazing man" and writes that "everything about you makes me love you."

The text messages were obtained by a lawyer working with a group of whistleblowers who sued the city.  The city settled the whistleblowers' claims.  Most cell phone companies, in the absence of a court order to the contrary, keep text-message data for a number of days or weeks.  However, Kilpatrick was reportedly tripped up because he used a government-issued pager which featured a message archiving system.

 In In re Krause, 2008 WL 1805508 (Bkrtcy.D.Kan. April 21, 2008), the bankruptcy court entered judgment in favor of the Government after finding that Gary Krause engaged in a "decades-long scheme" to keep all of his assets out of his own name while enjoying the benefits of those assets, including wiping computer hard drives. Early in the course of discovery, the Government served requests for production of documents on Krause seeking information residing on Krause's computers.  Krause failed to respond and the court issued an order compelling Krause to turnover the actual computers for inspection.  During the inspection, the Government learned that Krause had loaded and operated a wiping software program to permanently destroy or erase electronic information.  The court found that Krause willfully destroyed electronic evidence and assessed sanctions against him, including partial default judgment.  In addition, the judge threatened to hold Krause in contempt if he failed to produce other electronic information in his control.

The New Jersey Supreme Court held that a valid subpoena is required to seek disclosure of private subscriber information from an Internet Service Provider ("ISP").  In State of New Jersey v. Shirley Reid (A-105-06, April 21, 2008), defendant's employer used a sham subpoena to obtain information from Comcast. The resulting information confirmed the company's suspicion that the defendant had changed the username and password for the company's website.  The company turned the information over to police who arrested the defendant.  She was indicted and charged with second-degree computer theft.  In granting her motion to suppress the ISP information, the court ruled that a criminal grand jury subpoena was required because an indictable offense was at issue.  However, nothing bars the prosecutor from obtaining a grand jury subpoena and pursuing another indictment. To review the case, click here.

In State of Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008), the court dismissed as "not ripe for adjudication", plaintiff's request for a declaratory judgment that the defendant's letter seeking the preservation of documents relating to potential litigation violated the Federal Rules of Civil Procedure. 

Specifically, the State asked the court to determine "[w]hether it is a violation of Rule 26(f) and 34 to require an entity to broadly preserve and retain any and all electronic documents based on a [demand] made before suit is filed."  Although the Federal Rules do not specifically address a party's preservation obligation, the court noted that Rule 37 required the parties to act in good faith with respect to the preservation and production of documents.  The court declined to intervene in the prospective case or issue an advisory opinion as to what constitutes good faith.

According to CNN, the Federal Communications Commission is expected to announce a nationwide alert system that will use cell phones or other mobile devices to send text messages to Americans during a widespread disaster, severe weather, child abduction or other emergency.

Cell phone companies have indicated that they plan to sign up for the service. It appears that cell phone service subscribers will be automatically enrolled in the program, but may opt out.