Do you have one of those songs that you like, even if it sort of embarrasses you to admit it? Somebody’s Watching Me is mine.  Can’t even tell you why.  But I heard that song in my head when I read this case.

A former employee got sued by his former employer for allegedly stealing trade secrets.   The employer obtained the evidence from an external hard drive on the employee’s work computer.  One slightly technical issue in the case was whether the employer violated the federal Stored Communications Act when it accessed the e-mails stored on the hard drive.  The answer? No.  Because the employer viewed the e-mails as saved documents, it did not “intercept” them. That avoided liability under the federal act. 

More interesting to me, though, was the employee’s claim for invasion of privacy. The employer had no policy where it reserved the right to inspect employees’ e-mails.  And so the employee in the case argued that the employer had no right to look at the e-mails, or introduce them into evidence.   But the court disagreed.  It said that the employer had “reasonable grounds for suspecting the search [would] turn up evidence . . . of work related misconduct.”  And according to the court, the reasonable grounds trumped any expectation of privacy.

Two lessons here.  Employees, don’t assume any of you work e-mails are off limits to your employer.  And employers, you are still better off having a policy that spells out your right to inspect employees’ e-mails.  If the employer had adopted such a policy here, it may not have gotten sued in the first place.  Winning a lawsuit is great.  But not getting sued at all is even better!