Recent Decision Shows the Need for Information Governance, Computer Usage Policies, and Employee Training

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Information governance and computer usage policies should caution employees not to include embarrassing information in business communications.  Once that information is included in an email, if the communication is filed in court, the public likely gets to see it.  Callahan v. Un. Network for Organ Sharing, __ F.4th __, 2021 WL 5351863 (11th Cir. Nov. 16, 2021).

In the Eleventh Circuit’s words, here the sender preferred “to avoid the release of embarrassing internal communications that were attached to briefing in the district court….”  However, “[j]udicial records are open to the public….”  The court wrote:

The tools of the information age have only made more apparent what has always been true—once information is revealed, it cannot be made secret again.

One party worked “with the organ transplant community to generate policies that will equitably allocate organs among potential recipients.”  A new liver allocation policy that changed the geographic parameters for recipients was developed.  The policy-maker asserted that the new policy provided more transplants where the need was greatest.  Opponents argued that it provided fewer transplants in sociologically disadvantaged areas.  The Eleventh Circuit explained:

[T]he new organ transplant policy meant a shift in who would receive donated organs—ultimately, a change in which patients would live and which patients would die.

Litigation followed and discovery from the donation network included “communications between its top-level personnel and outside policymakers.”  The court described the communications:

These documents included, among other things, several unguarded emails expressing personal opinions about the relative merits of living in different regions of the United States. [Emphasis added].

The documents were included in motions filed in court. “They were attached to the hospitals’ supplemental brief in support of a preliminary injunction—a pretrial motion separate from discovery.”

From that, the court concluded that: “The materials thus qualify as judicial records, and they are subject to the common-law right of access.”

The court then balanced the public’s right of access against “the other party’s interest in keeping information confidential.”  It wrote:

To be sure, UNOS’s eagerness to keep the documents secret is understandable; we are certain that these are not the first litigants to wish they had been more circumspect in their emails. But UNOS’s reasoning boils down to a desire to keep indiscreet communications out of the public eye, which is not enough to satisfy our standard for good cause….  As we have long recognized, when ‘a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case.’” [Citation omitted; Emphasis added].