Labor: Applying old rules to new technologies is becoming increasingly frequent

Two court decisions on departing employees show process of evolving rules

For several years we have noted that the legal system needs to catch up to the ongoing computer revolution, not necessarily to craft new rules, but to reach something resembling consensus on how the old rules apply to new technologies. While that process by definition is one that can never be completed, we do seem to be in a period of almost daily judicial decisions applying old rules to new technologies. Hopefully we are moving toward some established principles that will give litigants more predictability in discovery and other technology-related issues. Just as important, decisions give companies guidance in structuring their information management practices in the liability-minimizing way.

Two decisions within the last month involving relatively new technological versions of old legal issues demonstrate this still-evolving process, and each has a takeaway for corporate information management as well. Invidia LLC v. DiFonzo is a Massachusetts trial court decision involving a hair stylist’s (DiFonzo) employment agreement. The agreement contained a post-employment two-year restriction on soliciting her employer’s clients.

The other case is AllianceBernstein L.P. v. Atha, where a New York appellate court reversed a trial court’s discovery decision relating to production of his iPhone in discovery. Again this involves a former employer suing a departed employee (Atha), this time alleging that Atha took proprietary client contact information on his iPhone when he departed. (And again, the “low tech” version of the issue—what client contact information is protectable under the trade secrets and other laws—is a long-standing one.)

The lower court found that the discovery request for the production of Atha’s iPhone was overbroad and “tantamount to ordering the production of his computer.” (And again one wonders about the reaction of most teenagers to that statement – “Well, your honor, it is his computer,” and a more powerful computer than most computers that sat on our desktops not 10 years ago.) Perhaps more in line with what we would expect, the appellate court ordered an in camera review of the iPhone, assisted by a record of the device’s contents.

Contributing Author

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William Nolan

William A. Nolan serves as the Managing Partner of Barnes & Thornburg LLP’s Columbus, Ohio, office. He is a member of the firm’s Labor and...

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