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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Ex-employee, Company Spar Over Unauthorized Access To ESI
Posted by Gregg Mayer on Thursday, March 13th, 2008
In a decision this month, a federal judge is considering how to let an employer search an ex-employee’s personal computer in a lawsuit over whether that employee illegally accessed the company’s electronically stored information (“ESI”).
In Equity Analytics v. Lundin, Equity discovered that its former employee, Timothy Lundin, had accessed the company’s Salesforce.com account after he was fired. Lundin explained he was given the password to the account by a member of Equity’s staff.
Equity wants to search Lundin’s computer, but the two sides cannot agree about how to do it. Lundin wants Equity to use specified search terms and file types. Equity wants broader access to the computer.
Interestingly, the judge hearing this case is the same judge who recently dealt with the search term issues of United States v. O’Keefe, discussed here on CIOLaw.org. The judge has said expert testimony may be needed to determine search terms are sufficient when probing for ESI.
On March 5, 2008, the judge ordered Equity to have its computer forensics examiner submit an affidavit explaining why the limitations proposed by Lundin would render the search inadequate.
The expert shall also describe in detail how the search will be conducted. Armed with that information, supplemented if necessary by a hearing at which the expert will be cross examined, I can make the best possible judgment as to how to balance Equity’s need for information against Lundin’s privacy.
Equity will have until March 20 to submit its expert affidavit. Check back with CIOLaw.org to read the latest developments.
Posted in: Federal Rules of Civil Procedure
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