Employer Erred by Downloading Former Employee’s Personal Email; But, Failure to Preserve it Was Not Spoliation; and, There Was a Gap in Employee Handbook Clause Permitting Employer Access Post-Termination

Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision.  The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are obscured by personal attacks by both parties and stories that are inconsistent even within themselves. After much strife among them, the matter has returned to this Court in the form of two cases, which we have consolidated.”  Id. at *1.

In this blog, I focus on: (1) the employer’s post-termination downloading of the former employee’s personal emails that were stored by the former employee on company hardware; and, (2) a spoliation issue.

I also mention:  (a) the Court’s analysis of the impact of specific provisions in an employee handbook on post-termination access to those personal emails; and, (b) a possible two-party consent issue presented by the employer’s policy that it could access employee emails stored by the employee on the employer’s system.

SUMMARY OF THE DECISION

The plaintiff, Mr. Shapiro, while employed by the defendant, permitted his employer – HHI – to set up plaintiffs’ personal email on the employer’s server and computers, using an IMAP protocol.  The employee was terminated; disputes arose; and, the employer downloaded the personal email to storage media, and then deleted it from the server and computers.  However, HHI “has not been able to find” the downloaded backup.  Id. at *8.

The plaintiff asserted that the employer defendant and others (acting in their official capacity for the employer) had accessed plaintiff’s personal email after the date of termination.  He presented privacy, wiretap, and State-law Stored Communications Act claims.  But, the Court found and held that there was no evidence that the defendants had read the emails after plaintiff’s termination.

The Appellate Court held that, while the employer’s deletion of the personal emails from the server was not actionable, the employer’s downloading of them to a backup stated a claim for violation of Maryland’s Stored Communications Act.  Further it held that the employer’s right of access – – under the specific terms of the employee handbook – – ended when the employee was terminated. The Court rejected invasion of privacy and wiretap claims because there was no evidence that the employer had read the emails after the plaintiff was terminated.  Plaintiff’s spoliation claim based on loss of the downloaded emails was also rejected; however, the Court did not cite Maryland’s new spoliation rule in its decision.

Hyperheal Hyperbarics should at least raise a yellow flag for employers.  The decision reinforces the need for carefully-designed, proactive, and comprehensive information governance and litigation hold procedures.

Permitting employees to use a company’s information technology system for personal purposes has long been recognized as fraught with hazards.  E.g., Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024); Information Governance Decisions Can Carry a Big Price Tag (Feb. 23, 2022); Recent Decision Shows the Need for Information Governance, Computer Usage Policies, and Employee Training (Nov. 19, 2021).[1]

HYPERHEAL HYPERBARICS INVOLVED TWO CASES

In Hyperheal Hyperbarics,“[t]he two cases underlying this appeal are Mr. Shapiro’s Employment and Emails Suit and Mr. Shapiro’s Indemnification Suit.”  Id. at *2.  In the former, which is the only one discussed here:

• The plaintiff, Mr. Shapiro, alleged failure to pay wages and “that after his termination, HHI wrongfully accessed his personal email account and viewed and downloaded his emails. He claimed that HHI was able to do so because he had previously logged into his personal email account on HHI computers.”
• The defendant, HHI, “claimed that it never wrongfully accessed Mr. Shapiro’s post-termination emails.”

Regarding the emails, the issue presented by “question two” was: “Did the circuit court err in granting summary judgment in favor of HHI on the basis that there was no evidence showing the emails had been viewed?”  Id. at *2.  The Appellate Court of Maryland wrote: “We answer question two ‘no’ in part ‘yes’ in part.”

THE “EMAIL CASE” INVOLVED ALLEGED WRONGFUL POST-TERMINATION ACCESS BY THE FORMER EMPLOYER, WHICH THE EMPLOYER DISPUTED

The Court explained: “In his complaint, Mr. Shapiro lodged nine counts against the defendants, five of which are on appeal before us.”  Three of them involve ESI issues.  Id. at *7. The Court wrote:

Counts III, V, and VI (Mr. Shapiro’s “email counts”) pertain to Mr. Shapiro’s claim that after his termination, HHI and the individual defendants wrongfully accessed his personal email account. In his complaint, Mr. Shapiro alleged that about a year after his termination, he was made aware that notifications for emails to his personal email account continued to pop up on HHI computers. He claimed that he had logged into his personal email account on the HHI computers when he was employed, but he said he logged out every time. Based on these facts, an affidavit from IT Director Mr. Hughey, and an investigation by a technology consultant, Mr. Shapiro alleged that each of the individual defendants (and thus HHI, since they were acting in their official capacities) had accessed his emails unlawfully. He alleged that by doing so, they invaded his privacy (intrusion upon seclusion), and violated the Stored Electronic Communications Act, see Md. Code, Cts. & Jud. Proc. (“CJP”) §§ 10-4A-01 & 10-4A-08, as well as the Maryland Wiretapping and Electronic Surveillance Act (the “Wiretap Act”), see Md. Code, CJP §§ 10-401, 10-402, & 10-410.

Id. at *7.

The Court explained HHI’s defense: “Regarding Mr. Shapiro’s email counts, HHI argued that the laws Mr. Shapiro cited would require unauthorized access to his emails, and Mr. Shapiro granted HHI authority to view his emails by logging onto his personal email account on HHI computers and by virtue of the Employee Handbook. HHI explained that when Mr. Shapiro was employed at HHI, he asked Mr. Hughey [HHI’s technology employee] to help him add his personal Gmail account to his work computers. Mr. Hughey said in an affidavit (offered into evidence by both HHI and Mr. Shapiro) that he mapped Mr. Shapiro’s email account onto two HHI computers. Mr. Hughey explained that through this method, once Mr. Shapiro inputted his password the first time, Mr. Shapiro’s Gmail account was downloaded to and stored on the configured computers.”

PLAINTIFF COMMINGLED HIS PERSONAL EMAIL WITH DEFENDANT’S

The Court provided additional details about the commingling of personal and company email.  Mr. Shapiro used both HHI’s computers and network.  Id. at *5.  The Court added:

The technology consultant, referred to infra, explained that because Gmail is cloud-based, typically when someone logs into their email on a computer, the emails are not stored or managed on that computer. Rather, the emails are stored and managed on a remote Gmail server, and the user needs an internet connection to access them. By mapping Mr. Shapiro’s account onto the computers, as Mr. Hughey says he did, a list of the emails in the account’s inbox would have been stored on the computers (in addition to the typical Gmail server) and could be readily downloaded to the computers upon clicking them.

Id. at n. 23.

The Court wrote:  “Mr. Hughey explained that through this method, once Mr. Shapiro inputted his password the first time, Mr. Shapiro’s Gmail account was downloaded to and stored on the configured computers.”  Id. at *8.

The Court added: “IMAP, which is the protocol Mr. Hughey claims he used, would have stored Mr. Shapiro’s emails on an HHI server, in addition to the Gmail server on which they are normally stored. When emails are mapped onto another server using the IMAP protocol, the user can view and edit their emails even when they are not connected to the internet. Conversely, if Mr. Shapiro had just logged in and out each time he viewed his email, his emails would have only been stored on the Gmail server and not the HHI server.”  Id. at n. 34.

There was, however, disagreement.  Mr. Shapiro “disputed the process Mr. Hughey set forth; instead, he contended that the account was not stored on the HHI computers because he still had to input his password every time he opened his Gmail account.”  Id. at *9.

POST-TERMINATION EVENTS

The plot then thickens based on post-termination events.  The Court wrote:

After Mr. Hughey helped Mr. Shapiro, HHI said that notifications about emails to Mr. Shapiro’s personal account would pop up on the two HHI computers. These notifications continued to pop up after Mr. Shapiro’s termination. After employees complained about the notifications, Mr. Hughey deleted Mr. Shapiro’s account from the server. Before doing so, he created a backup of the account by downloading it to a password-protected hard drive. He said he decided to create the backup in his capacity as IT Director because it was part of his standard operating procedure, and he knew HHI “was in some degree of difficulty with Mr. Shapiro … [and he] felt it was prudent to back up that information prior to deleting it in case it was needed later.” HHI has not been able to find the hard drive containing Mr. Shapiro’s emails. [emphasis added].

However, HHI essentially argued that the missing ESI was irrelevant:

HHI argued that Mr. Shapiro had not introduced any evidence that anyone at HHI unlawfully accessed and read his post-termination emails. It noted that Mr. Shapiro even testified during depositions that he could not identify a single email that anyone read. HHI argued that the only evidence of access was Mr. Hughey’s access to delete the account mapping and create a backup; however, it contended that Mr. Hughey’s access could not be unlawful because “[t]he argument by [Mr.] Shapiro that he could create the access and not permit [HHI] to remove that access without liability is sheer nonsense.” Because Mr. Shapiro had not offered any evidence of unlawful access besides his own speculation, HHI argued the court should grant its motion for summary judgment.

HHI backed up its argument with evidence:

HHI introduced affidavits of a technology consultant to support its assertion that its only access of Mr. Shapiro’s personal email account was Mr. Hughey’s access to download and delete it. The technology consultant examined Mr. Shapiro’s email account and its activity after Mr. Shapiro was terminated. He found that Mr. Shapiro’s email had been accessed once following his termination, and he concluded that the access lined up with when Mr. Hughey deleted the account off the HHI computers. The technology consultant was not identified as an expert for either side, but, without objection from Mr. Shapiro, HHI offered the consultant’s affidavits in support of its motion for summary judgment.

HHI also relied on its employee handbook to support its argument that post-termination access, if any, was permissible:

Moreover, HHI argued that pursuant to the Employee Handbook, employees had no reasonable expectation of privacy regarding any information or materials stored in HHI computers. Further, employees agreed that if they used HHI computers for personal purposes, they did so at their own risk.

The Employee Handbook contained standard boilerplate described at page *9 of the Court’s opinion.

THE UNDISPUTED FACTS

The trial court found that there was no evidence that defendants had opened any of the files, and held that opening the files was a fundamental element of the three claims.  Thus, it granted summary judgment.

The Appellate Court recited the facts relating to the emails:

Beginning with the undisputed facts, Mr. Shapiro admitted in his pleadings that when he was employed at HHI, he used HHI computers to check his personal email account. At the relevant time, under the 2016 HHI Employee Handbook, employees agreed that they had no expectation of privacy in their work computers, and HHI retained the right to review and inspect employee computers and emails. Mr. Hughey helped Mr. Shapiro set up his personal email account on the HHI computers—although precisely how he did this is disputed. When Mr. Shapiro was terminated, both parties agree that his email notifications continued to appear on the HHI computers. To remedy this problem, Mr. Hughey deleted Mr. Shapiro’s personal email account from the computers, but before doing so, he made a backup on a hard drive. He said that he did this as standard operating procedure and because he knew HHI was in some litigation with Mr. Shapiro so he thought it would be prudent.[2] HHI said that it could not find this hard drive. Mr. Shapiro only contests alleged post-termination access of his emails; he does not contest any accessing of his emails that may have occurred during his employment.

Id. at *15 (emphasis added).

PLAINTIFF’S LACK OF EVIDENCE

Mr. Shapiro asserted that the facts were in dispute.  He claimed that “other employees did read his post-termination emails before Mr. Hughey deleted the account from the HHI computers. He also contends that HHI employees read his emails using the backup Mr. Hughey made.”  Id. at *15.

The Court wrote that: “However, [Mr. Shapiro] does not offer evidence to support these contentions. Instead, he urges that HHI’s employee witnesses are not credible and had motivations to lie about whether they viewed his emails.”  Id. at *15.

That argument failed.  The Court wrote:

Beginning with whether anyone at HHI read Mr. Shapiro’s emails, there is no genuine dispute regarding this fact. HHI has produced sworn statements from each of the individual defendants that none of them ever opened, looked at, or read Mr. Shapiro’s emails. Mr. Shapiro offers no evidence to the contrary. During a deposition, HHI asked Mr. Shapiro, “I’m trying to find out whether you can identify whether anybody has used any of that information that was contained in those e-mails?” Mr. Shapiro responded, “I don’t have any facts. I can only speculate.” (Emphasis added). During the deposition, Mr. Shapiro based his speculation on assumptions about what he believed HHI employees would do, saying, “I think it’s safe to say that human nature would have had those individuals reading it.” But Mr. Shapiro’s speculation does not create a material dispute of fact as to whether HHI employees accessed his email, other than Mr. Hughey’s access….  Therefore, it is undisputed that HHI did not access Mr. Shapiro’s post-termination emails, besides when Mr. Hughey downloaded and deleted the account.

Id. at *16.  “Speculation” does not carry the burden of production.  See, e.g., Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation (Jul. 27, 2021); There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions (Aug. 11, 2021).  “Speculation is never a substitute for proof, and merely insisting that there must be more information than has been produced in discovery is not adequate…. ‘Mere suspicion or speculation that an opposing party may be withholding discoverable information is insufficient.’.…  Here, as in any other context, merely ‘saying so does not make it so.’”  Discovery is the Lawyer’s X-Ray; However, an MRI May Not Be Reasonable (Sep. 4, 2024), quoting Khan v. County of Cook, 2024 WL 3984263, at *6 (N.D. Ill. Aug. 29, 2024).

In short, the Appellate Court squarely stated that Mr. Shapiro “does not offer evidence” to support his contention that HHI employees read his emails on the active HHI system or “using the backup,” after he was terminated.  Id. at *15.  In fact, it reiterated that he “has offered no evidence that anybody opened… a single email from HHI’s computers or the hard drive.”  Id. at *17.

However, I ask whether it is supportable to conclude that there was “no evidence” and only “speculation” to support Mr. Shapiro.  Like Fed.R.Evid. 1004, Md. Rule 5-1004 permits proof of the contents of a writing or recording “by evidence other than the original,” if: the original is lost or destroyed; not obtainable; or, the party possessing it was put on notice that it would be the subject of proof at trial and does not produce it.

The Hyperheal Hyperbarics Court’s decision states that Mr. Shapiro “contended that sometimes when he logged onto his account even after his termination, certain emails were marked read even though he had never read them.”  Id. at *9 (emphasis added).  Concededly, he did not provide specifics, but this was some evidence supporting his claim.

And, as to the hard drive, it seems difficult to fault plaintiff for offering no evidence about a hard drive that defendant failed to preserve.  See Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant (Aug. 18, 2021), citing McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021).

APPLICATION OF THE LAW TO THE UNDISPUTED FACTS

The Court stated: “Having determined that there was no genuine dispute concerning whether anyone at HHI read Mr. Shapiro’s emails (they didn’t), we next apply the law.”  Id. at *17.

Privacy and Wiretapping Claims Fail

That undisputed fact defeated the invasion of privacy and wiretapping claims.  As to the former, the Court explained:

Whether Mr. Shapiro’s emails were on HHI’s computers, or downloaded onto a hard drive, there was no evidence that anyone from HHI read the emails. Simply possessing the emails on the HHI computers does not mean that HHI’s employees intruded upon them. Nor does downloading the emails onto a hard drive. Indeed, Mr. Shapiro has offered no evidence that anybody opened (and thus intruded upon) a single email from HHI’s computers or the hard drive. Further, without identifying any emails that anybody read, Mr. Shapiro cannot prove that any alleged intrusion would be highly offensive to a reasonable person.

Id.  at *17. Further, because storing emails, and downloading stored emails, does not “intercept” them, there is no wiretapping. Id. at *17-18.

Stored Communications Act Survives Due to Employer’s Downloading

However, the Court held that “the undisputed fact that Mr. Hughey downloaded Mr. Shapiro’s email account precludes summary judgment in favor of HHI on Mr. Shapiro’s SECA count as a matter of law.”  Id. at *17 (emphasis added).

On that count, the Court wrote: “The circuit court was incorrect, however, in granting HHI summary judgment on Mr. Shapiro’s third email count because a violation of the law at issue does not require HHI to have read Mr. Shapiro’s emails. Instead, the statute targets unauthorized access to an email server, which is what Mr. Shapiro alleges Mr. Hughey did by downloading Mr. Shapiro’s emails onto a hard drive.”  Id. at *18.

The Hyperheal Hyperbarics Court concluded that the SCA “does not require that HHI have read Mr. Shapiro’s post-termination emails. Instead, it requires that HHI ‘obtain, alter, or prevent authorized access’ by ‘intentionally accessing without authorization’ or ‘exceeding authorization to access a facility through which an electronic communication service is provided.’” Id. at *18; but cf. Van Buren v. United States, 593 U.S. 374, 396 (2021)(“In sum, an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.”).

The Hyperheal Hyperbarics Court held that deletion of Mr. Shaprio’s IMAP emails from the HHI servers did not violate the SCA.  Id.

Downloading the personal emails to password-protected hard drive, however, was different. The Court wrote that “it was wrong to conclude that Mr. Hughey’s download of the account onto the hard drive did not qualify as altering or obtaining authorized access.”  Id. at 18-19.

While Mr. Shapiro may have authorized HHI’s access to his Gmail account by logging onto it, Mr. Hughey’s downloading the entirety of Mr. Shapiro’s email account onto a hard drive, i.e., a new device that HHI could access (and that Mr. Hughey thought it prudent to retain), amounted to access that exceeded Mr. Shapiro’s authorization. Therefore, HHI was not entitled to summary judgment on the final email count because the circuit court was incorrect in concluding that a download of Mr. Shapiro’s email account would not meet the [Maryland Stored Communication] Act’s access requirements as a matter of law.

Id. at *19.

In short, the Hyperheal Hyperbarics Court held that, when HHI downloaded a copy of Mr. Shapiro’s personal emails from HHI’s information technology system to an external storage device, so that it could delete the ESI from its active system to stop email “pop up” notices to HHI’s current employees, HHI may have violated Maryland’s Stored Communications Act. In the Court’s view, the downloading was either access without authorization or exceeding authorization under that statute. Id. at *34.  The Court reversed the grant of summary judgment on that issue.  It also reversed on other issues not relating to electronically stored information.

SOME QUESTIONS

Downloading

I have some questions about that holding. Deletion occurred after Mr. Hugely knew HHI was in some litigation with Mr. Shapiro.  That knowledge likely triggered a common-law duty to preserve that ESI.  Downloading a copy, if done forensically, is one reasonable preservation method.  In fact, deletion without preservation would, if the deleted information was relevant and proportional, violate the duty to preserve.

That put HHI on the horns of a dilemma.  If it left Mr. Shapiro’s personal email on its system, the “pop ups” might permit other employees to access his personal email, supporting plaintiff’s intrusion upon seclusion and wiretap claims.  If HHI deleted the personal email without downloading it, it risked spoliation sanctions.  However, if it downloaded that email to fulfill its common law preservation duty, it ran the risk of being held in violation of Maryland’s Stored Communications Act.

Further, it appears that the holding may be inconsistent with Van Buren, 593 U.S. at 396 (interpreting federal Stored Communications Act).

Spoliation

Additionally, Mr. Shapiro alleged spoliation because the hard drive containing his downloaded personal emails had gone missing.  Id. at nn. 25, 32.  The Court’s analysis of the spoliation claim was set out in n. 32:

Mr. Shapiro also attempts to argue that the doctrine of spoliation applies. He says that under that doctrine, “a party should not be allowed to support its claims or defenses with physical evidence that it has destroyed to the detriment of its opponent.” Cumberland Ins. Grp. v. Delmarva Power, 226 Md. App. 691, 696-97, 130 A.3d 1183 (2016). Although we are not sure what production of the hard drive would prove, since Mr. Hughey already admitted to creating it, Mr. Shapiro has failed to prove an act of destruction or intent to destroy it, both required elements for spoliation. See Klupt v. Krongard, 126 Md. App. 179, 199, 728 A.2d 727 (1999). Furthermore, even a favorable finding of spoliation, that HHI destroyed the hard drive with the emails, cannot defeat the fact that Mr. Shapiro has produced no evidence that anyone read the emails. [emphasis added].

The Appeals Court did not cite Maryland Rule 2-433(b)(sanctions) which was amended by the Maryland Supreme Court and became effective this year. The Rule states that: “If electronically stored information that should have been preserved in the reasonable anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and the information cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.”

In my view, Cumberland and Klupt’s requirement of proof of “an act of destruction or intent to destroy” has been superseded by the Rule. Instead, the issue is whether HHI failed to take reasonable steps to preserve the hard drive containing the emails.  While the circumstances under which the hard drive went missing were not explained, it does not seem far-fetched to conclude that reasonable steps were not taken.  For example, there is no mention of HHI have sent a litigation hold notice or taken any other steps to implement a litigation hold.

It seems reasonable to conclude that the Court would have found “no prejudice” here. However, the Court stated that it “not sure what production of the hard drive would prove….”  I wonder, for example, if a forensic argument could have been presented that “last accessed”  or “last modified” metadata on email attachments that might have been saved to the hard drive could have shown whether HHI opened email attachments after the date of termination?  Or, whether a  forensic examination of the hard drive might have disclosed relevant facts?  In any event, I leave forensics to forensic experts, and I am not one of them.

Maryland’s new sanctions rule textually differs from Fed.R.Civ.P. 37(e).  See Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e) (Nov. 3, 2023).  Under Fed.R.Civ.P. 37(e)(1), curative sanctions would have been available on a finding of prejudice. Under Fed.R.Civ.P. 37(e)(2), if a court found “intent to deprive,” prejudice could have been presumed.

However, under pre-amendment Maryland common law, which was not raised in Hyperheal Hyperbarics: “The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his opponent’s cause.”  Anderson v. Litzenberg, 115 Md. App. 549, 560–61 (1997).

Here, HHI, with knowledge of litigation or disputes with Mr. Shapiro, downloaded the emails to a hard drive because it deemed it prudent to do so.  HHI downloaded it “in case it was needed later.”  It would likely have cost nothing to preserve that ESI.  However, HHI failed to do so and there is no explanation for that failure.  Further, there is no indication that HHI imposed a litigation hold.  Is that sufficient to create an inference?[3]

***

Two other ESI issues in Hyperheal Hyperbarics are worth noting.

The Two-Party Consent Issue

First, Mr. Shapiro argued that, because Maryland is a two-party consent state, unless both parties to his email consented to review by HHI, Mr. Shapiro’s consent was not valid.  See n. 35.  Under, Md. Code, CJP § 10-402(c)(3), it is unlawful to intercept an electronic communication absent consent of all of the parties to it.  Mr. Shapiro argued that, even assuming that he consented, “the people whom he was emailing did not.”  Id. at n. 24.

The Hyperheal Hyperbarics Court rejected this argument because there was no evidence that anyone had read the emails.  “Thus, there are no parties besides Mr. Shapiro who would have needed to consent to the access because none of his conversations were accessed.”  Id. at n. 35.

This leaves open the question of whether the two-party consent argument would have succeeded if HHI had read any of Mr. Shapiro’s personal emails.  In short, if Mr. Shapiro sent an email to Ms. XYZ, and if HHI accessed and read it, did that action violate the two-party consent rule because Ms. XYZ had not consented to HHI’s access?

Gap in the Employee Handbook?

Second, under the provisions of the HHI handbook at issue, the Court stated that there is a post-termination limit to an employee’s consent to employer access, writing: “[T]he Employee Handbook could not apply to emails Mr. Shapiro received after he was terminated, which were the only ones Mr. Shapiro contested. Mr. Shapiro’s employment agreement explicitly stated that it would terminate if HHI terminated Mr. Shapiro…. Further, the Employee Handbook explicitly only applied to ‘employees’ of HHI….” Id. at n. 37.  The Court explained:

HHI has not identified any provision of the employment agreement that would suggest the Handbook’s “no privacy” notice survives an employee’s termination. When HHI terminated Mr. Shapiro, Mr. Shapiro was no longer an employee, and HHI lost any right it may have had to view his future emails.

Id. at n. 37.

TAKE-AWAYS

Employers may wish to review their information governance, personal use, and employee handbooks in light of this decision.[4]

Here, HHI engaged in self-collection and self-preservation.  In order to be defensible, self-preservation or self-collection must employ rigorous protocols.  Self-Collection, Discovery About Discovery, and Curative Sanctions (Sep. 22, 2024);  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024).

____

[1] Mr. Shapiro wore several “hats” at different times at HHI.  One of those “hats” was that of an employee and, in this blog, I use the term “employee.”  See id. at *5.

[2] There is no mention of a litigation hold notice.  See Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications (Nov. 28, 2021)(“In the absence of any effort to preserve or gather responsive electronic information, as well as affirmative evidence that at least some relevant electronic evidence was affirmatively destroyed during the pendency of this case, some sanction is appropriate.”), quoting Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021).

[3] All reasonable inferences are to be drawn in favor of a party opposing summary judgment.  Id. at *10, 15.

[4] Westlaw states that the opinion has not yet been released for publication and is subject to revision or withdrawal.