Do employees have a reasonable expectation of privacy when writing personal emails on company-issued PDAs? How about when the employee tweets from a personal Twitter account on a company-issued laptop? Should an employee expect to have her entire Yahoo email account searched for document production purposes if she periodically conducts company business from that account? Does it and should it matter if the employee is in her office, commuting to work, or on her couch at home? These are just some of the questions outside and inside counsel find themselves asking with the explosion of social networking sites, text messaging and other novel forms of communication and as litigants become increasingly aggressive in seeking personal electronic material to bolster their claims.
The answer to these questions, as you might expect, is: It depends. As the various forms of communication evolve, so too, it seems, does our perception of what is private and what is not. In the context of litigation, there is nothing in the Federal Rules of Civil Procedure that speak directly to this issue: The 2006 amendments to Rule 34(a) adopted a broad definition of electronically stored information, but say nothing about what is off-limits for discovery purposes. As a result, in-house counsel are constantly balancing obligations under the Federal Rules with the perception among their employees that certain communications, even if transmitted on a work-issued device, will remain private.