Court Extends 'Riley' Privacy to Employee Phones

By Tera Brostoff    

July 11 --A federal district court recently denied without prejudice a motion by two former employees to inspect the mobile phones provided to other employees by their employer for evidence of racial discrimination and a hostile work environment because the motion was overly broad and implicated privacy interests in mobile phones.

“The implication of the individual defendants' privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs' motion,” Magistrate Judge Holly B. Fitzsimmons of the U.S. District Court for the District of Connecticut wrote in the court's June 26 opinion.

The court said its conclusion was “further reinforced” by the U.S. Supreme Court's ruling in Riley v. California, Nos. 13-132 and 13-212, 2014 BL 175779 (June 25, 2014), “which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone.”

Bakhit shows that the Supreme Court's decision in Riley, finding a 'weighty' privacy interest in a personal smartphone, will influence civil cases involving access to information on personal smartphones even though Riley arose in the criminal context,” Philip L. Gordon, shareholder at Littler Mendelson PC, Denver, told Bloomberg BNA July 11 (see related BBNA Insight on page 224).

Following Riley, “judges likely will be less receptive to overbroad civil discovery requests like the one in Bakhit, which sought unlimited discovery of six years of cell phone data, and possibly more sympathetic to claims based on unauthorized access to smartphones,” Gordon said.

“For this reason, employers will need to be particularly cautious before searching an employee's personal smartphone in connection with any workplace investigation,” he said.

The magistrate judge also pointed to Riley's recognition that mobile phones collect many types of information in one place, thus allowing the possibility of revealing more information than one record by itself, and a mobile phone's large storage capacity.

With assistance from Katie Johnson in Washington.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com