The modern workplace presents a cornucopia of problems thanks to technology. As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible. After all, employees can just use their personal cellphones to get online. Add to that reality the fact the growing popularity of BYOD policies.
So what, you might ask? Well, one big problem is when an employee uses his personal device or account for company business. The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account.
In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.
But a new case from Puerto Rico takes a different approach. In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers. The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.
Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence. The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.
P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).
[H/T Bow Tie Law Blog]