The Landscape of Electronic Workplace (eWorkplace)  Technology Acceptable Use Policies

Every U.S. private and public sector employer should develop, maintain and enforce an effective, appropriate workplace technology-acceptable-use policy (“TAUP”).   In large part, a TAUP is a no-expectation-of-employee-privacy (“NoEEP”) policy.  Thus, to strive for maximum defensibility, every employer should keep up on two key tasks.  First, it should have a coherently written acceptable-use policy adapted to modern technologies.  Second, it should train – and periodically remind/re-train – its managers of the do’s and don’ts of consistent, appropriate enforcement.

The U.S. Supreme Court decision in City of Ontario v. Quon, 130 S. Ct. 2619 (June 17, 2010) culminated a long, cautionary tale with many lessons.  The key Quon defendant (a public sector employer) ultimately succeeded in fending off a Fourth Amendment challenge to enforcement of its acceptable-use policy when it reviewed the contents of a police officer’s text messages (to his wife and his mistress) sent on a city-issued pager.    

Yet the years of litigation could have been avoided if the employer, the city of Ontario, had been more disciplined in its  written policy maintenance and less reckless in its policy-enforcement approach.

For a full discussion of the legal reasoning of the U.S. Supreme Court in Quon, see Brownstone eWorkplace Materials II, at 20-24 (.pdf pp. 25-29).  For employees, Quon’s enduring lessons are: be mindful of what one commits to writing; and do one’s best to erect a divide between one’s personal and work-related communications.  For employers — both in the public and private sectors — please read on below for my TopTen post-Quon Taup tips.


Top Ten TAUP Takeaways  

10. Have a clear, bold, highlighted written provision covering – at least as to U.S. employees (EU countries’ privacy laws are much more employee-friendly) – NoEEP as to all information created, stored, received or transmitted on or by any system or device provided by the employer.

9.   Decide whether to extend the NoEEP to all devices supported by (e.g., Outlook access) or costs–reimbursed  by the employer [are you OK with BYOD?]; and then make the scope clear: a) in the written policy; b) to all supervisors/managers; and c) to all staff.

8.   Specify all employer rights, including to: monitor; search; access; inspect; and read.

7.   Give clear written notice to all employees and covered third parties allowed access to employer systems/networks.

6.   Be realistic as to “personal use” – strongly consider a “limited” or “incidental” exception, but with carve-outs for certain activities: violating the law or any other employer policy; interfering with the employee’s job performance; or aiming for personal pecuniary gain to the detriment of the employer.

5.  Train new employees – and periodically retrain experienced ones – on key TAUP provisions, especially as to NoEEPP.

4.  Train supervisors/managers on consistent, fair enforcement.

3.  In the trenches, do not overreach as to: an employee’s own attorney-client privilege; or the illicit obtainment – let alone use – of an employee’s personal login/password.

2. Provide an annual concise reminder summarizing key TAUP provisions, including employees’ right to discuss employment conditions.

1. Periodically – every two or three years? – review (and revise?) the TAUP so it’s: consistent with actual practices; and up-to-date as to current technology, e.g., smartphones, social media and “The Cloud”.


The “e”     Big Picture    

Always remember the Three E’s of compliance: Establish, Educate and Enforce as propounded by Nancy Flynn of the ePolicy Institute <@ePolicyInstitut>.  First, policy goals must be established.  Second, once the policies are written, employees must be educated on the content.  And, third, only then, should technology be used as one enforcement/ implementation mechanism – not as a magic-bullet.


This post is based in part on “A Wake-up Call for 21st Century Employers“, Daily Journal (Sep.  29, 2010), which I co-authored with my colleague Sheeva Ghassemi-Vanni <@EmpLawSJGV>.

 

The Murky Way         

An oft-repeated translating maxim is: technologists are from Mars, lawyers are from Venus.

So getting IT folks and attorneys — both infamous for acronyms and jargon — to work together during eDiscovery can be challenging.  An interplanetary translator is often needed when attorneys and techies collaborate to tame the world of electronically stored information (ESI) – especially when someone needs to explain status or next steps to the client.


You Talkin’ To Me?

Some different monikers for common ESI terms used in eDiscovery follow below:

(click chart to enlarge)

My favorite is the “custodian” one.  The most oft-misunderstood one in that list could very well be “index”.   But there’s an even more troubling one . . . .


You Say “ARChive”, I Say “ArcHIVE” . . . 

Consider the word “archive.”

 

While its everyday meaning – any kind of information maintained for historical reference – can seem straightforward enough, “archive” in the ESI universe can mean either a backed up set or subset of an organization’s enterprise-wide data, or the e-mails stored somewhere other than in people’s active e-mailboxes.

Complicating matters even further, the term can have two additional connotations in both the worlds of backup and email. In the backup context, “archive” can refer to either: the arcane practice of copying of some or all of an organization’s data into a storage format (in old days, mostly on tape, but now often on hard disk) from which it is restored most typically after a disaster; or live data in “near-line storage” available for a relatively easy connection to the company’s network.

Then, in the e-mail setting, “archive” can refer either to an automated, company-wide repository of employees’ older e-mails; or e-mail messages that an individual manually copies ad hoc to a personal storage file, known as a “.pst” file in the Microsoft Outlook environment.

Sometimes months can go by before the key players realize that their minds never met on this single word.  The outside legal team thinks it has been processing and reviewing all e-mails collected from live mailboxes, back-ups and .pst’s, the CEO believes costs were saved because only live mailbox data was addressed; and the techie feels proud that he followed directions by only collecting e-mails from .pst’s stored on shared network drives.


Truth or Consequences

It can be difficult enough to resolve the resulting squabbles and finger pointing.

But then you need to convince the other side that re-production is necessary due to an innocent mistake; and you have to maintain your credibility before the judge (crucial to effective lawyering).  In addition to everything else, the court often treats e-mails and back-ups in diametrically opposed ways.  E-mails are presumptively discoverable as long as they contain relevant information within a pertinent time frame.  But, at least in federal court, back-ups are presumptively not discoverable until the requesting party shows good cause.

Mixing up enterprise-wide data with email backups – or a similar snafu – during discovery can lead to inefficiency and spoliation sanctions.  It can also keep a client from understanding his/her options when analyzing the risks and benefits of various e-discovery decisions.  At each stage, making a mistake about what a word like “archive” means can seriously jeopardize effective communications in written discovery responses, meet-and-confer correspondence and status conferences at the courthouse.


Let’s Be Careful Out There

Ambiguity inheres in many a term or phrase.

In the throes of discovery, confusion can reign when lawyers don’t have someone to communicate with IT staff who are trying to get their day-job done and client leaders who are busy running their company.   The trick is to be as specific as possible when discussing ESI.  When in doubt about an acronym or a computer-technology process, ASK.

An effective dialogue can be pivotal for the ultimate success of your navigation of the e-discovery universe — and the lawsuit as a whole.


A prior version of this article was published in the May 2010 issue of California Lawyer.


TO LEARN MORE:

See the eDiscovery Terminology Glossary (.pdf) compiled and maintained by the author.

See also this excellent Technology-Assisted-Review Glossary created by Maura R. Grossman and Gordon V. Cormack and posted on the EDRM site.


Introduction to eDiscovery’s eVolution – Past, Present and Future

Three segments of the 1940 Walt Disney classic Fantasia correspond with the three historical phases business information and civil litigation discovery have undergone in the past three-quarters of a century.  Fantasia, an iconic combination of a set of Disney-animated vignettes each set to a well known classical music piece, went into production in 1938.  That same year, the first version of the U.S. Federal Rules of Civil Procedure was adopted.

In the now distant past, from 1938 until approximately 1995, business information — and thus lawsuit discovery — entailed an evolving and growing universe, mostly of paper documents.  One of my former Fenwick & West LLP colleagues,  J. Carlos Orellana, once pronounced that discovery “document review is the primordial ooze of litigation.”  Yet, even as that ooze grew and took over lawsuits, there were outer bounds.  Yet, in the next era, from 1995 to 2011 (but still the status in most circles), the explosive growth of the internet, storage chip capacities and portable devices magically rendered the scope of information and discovery vast and overwhelming.

After what seemed to some like an interminable wait, in 2012 some judges ushered in a futuristic phase.  Their respective orders addressing technology-assisted-review (TAR) – a/k/a predictive coding – were long-awaited harbingers that opposing litigators will be forced to collaborate.  Why?  To get to the merits efficiently – or at all.


I.  Distant Past – Primordial Ooze to Prehistoric Behemoths to Extinction via The Rite of Spring

Amoebae and then primitive fish were depicted throughout the beginning of the Fantasia segment The Rites of Spring, set to the music of Igor Stravinksy.  Similarly, information creation processes sputtered and slithered along for eons before eventually growing bigger and increasingly powerful.  At some point, earth’s creatures emerged from the ooze and became lumbering dinosaurs.  

Ultimately, the dinosaurs slugged it out with each other.  But to what end?  They ultimately all became extinct, as vividly displayed in the Disney Rites of Spring segment.  Similarly, as the Internet era dawned, those in the business and litigation worlds who remained wedded to paper began their own march toward obsolescence.

However large a “paper dump” ensued in a lawsuit, relatively speaking there were finite sets of discoverable materials to be collected, reviewed and produced, on the one hand, and requested, obtained and reviewed, on the other hand.  Although lawsuits lumbered along as the parties duked it out in discovery, there was more of a chance to get to the merits than nowadays.


II.  Past (& Still Present) – Taming an Army of Clones Created by The Sorcerer’s Apprentice

A non-expert, Mickey Mouse, uses his boss’ magic in the Fantasia segment Sorcerer’s Apprentice, set to the music of Paul Dukas.  The power to create goes awry as a lone broom comes to life to carry two water buckets.   Then duplication occurs and re-occurs until hundreds of identical broom-plus-buckets run amok to flood the premises.

Anologously, once paper came to be more and more displaced by electronically stored information, the size of most every company’s discoverable data set became expansive and often infinite.  Consequently, so did the vast amounts of electronically stored information (ESI) potentially subject to electronic discovery (eDiscovery) in lawsuits.  Amendments of procedural rules in the federal and states’ realms reflected were supposedly designed to shrink the scope of discovery.  But a variety of factors, including disparity in computer-savvy and financial-resources among litigation adversaries, have bogged down lawsuits more and more in a sea of data battles.

In the Disney Apprentice segment, the Sorcerer jumps in to save the day and clean up the mess.  But modern day judges have often been unable or ill-suited to readily enter the fray to tamp down on the chaos.  All judges operate under budgetary and resource restrictions; and many of them do not have sufficient technological expertise  or fierceness to ride herd on the data.

Some positive developments emerged as this next era came to an end.  For example, between 2008 and 2012, 135 judges signed onto the Sedona Conference Cooperation Proclamation (.pdf; free registration required), which urges opposing litigants and their counsel to take a collaborative approach to eDiscovery.  More significantly, a number of courts began to adopt their own orders and guidelines requiring the parties to engage in early attempts to narrow scope and cut to the chase.   For example, see:

—     the Federal Circuit’s 2011 MODEL ORDER RE: E-DISCOVERY IN PATENT CASES; and

—     the Northern District of California’s 2012 E-Discovery (ESI) Guidelines.


III.  The Future is Now –Technology-Assisted-Review Will Get the Gator and the Hippo to Join in the Dance of the Hours

A cartoon ostrich is lying down, curled up and hiding her face in the opening of the Dance of the Hours set to Almicare Ponchielli’s ballet music from the opera La Gioconda.   Eventually various other animals emerge, including a hippo who is initially terrified of an alligator.  Eventually the hippo and the alligator cooperate and even dance a pas de deux.

     

In the eDiscovery jungle, traditionally opposing counsel have been wary of each other and cooperation has been a difficult pill to swallow for many a litigator.   For many years, some tech-savvy judges and lawyers, commentators and computer scientists have been beating the drum for a better way.  For example, see:

          —     International Association for Artifical Intelligence (“AI”) and Law (“ICAIL”) (1992-2013);

         —     Collaborative Navigation of the Stormy eDiscovery Seas, 10 Rich. J.L. & Tech. 53 (2004);  and

          —     Text REtrieval Conference (“TREC”) Legal Track (2006-2013).

Between February 2012 and April 2013, half a dozen judges — in various federal and state courts nationwide — wrestled with the issue of requiring the use of technology-assisted-review (T-A-R) to help cull through one litigant’s large data set.  Five of those judges essentially issued some form of court order requiring T-A-R, a/k/a “predictive coding.  For links to all these decisions and to explanatory articles, see this T-A-R slide deck my tech colleagues and I prepared.

In sum, T-A-R involves a litigator knowledgeable about the facts of a case engaging in an iterative process to “train” a sophisticated eDiscovery platform’s AI feature to distinguish relevant documents or messages from irrelevant ones.  The promise of T-A-R is that much of the old-school document-by-document manual review by human reviewers can be avoided.  The trick is making sure the platform’s coding and algorithms work, the trainer/lawyer is effective and the people-plus-machine process is  sound as well as acceptable to the other side and the court.

While this new batch of five cases is just the start of a new era, it bodes well for the future of court-ordered cooperation aimed at forcing the alligators (plaintiffs’ counsel) and the hippos (defendants’ counsel) gracefully dancing with each other.  And when the real conductors — the clients themselves — start regularly waving their batons of efficiency and cost-effectiveness, a new futuristic cut-to-the-chase era will truly be in full swing.


Conclusion

My crystal ball shows that, in approximately a decade, eDiscovery culling and review will routinely  involve T-A-R.

In the meantime, keep returning to this new blog as we journey together to navigate ESI’s ever-changing tides.


TO LEARN MORE about T-A-R: