QUON: All Hail Justice Scalia’s Concurring Opinion

June 21, 2010 - By Virginia Henschel

The Justices have restored sanity to the workplace investigation with the Court’s opinion in Quon v. Arch Wireless, 2010 U.S. LEXIS 4972 (June 17, 2010). While the legal community was taken aback by the lack of 21st century experience the Court demonstrated during oral argument, it is evident that the Justices scaled the knowledge pyramid in the intervening weeks. 

This was a case where indications from the oral argument before the Court portended a decision that could be difficult for employers to “live with”.  Employee’s expectations of privacy in the workplace rarely comport with the realities of data retention that organization are required to manage.  Certainly violations of workplace rules via employer issued mobile devices should permit review of the usage. 

This is a pervasive issue in employee relations affecting the vast majority of employers.  The use of workplace technology by employees has all but extinguished the barrier between personal use and work use.  As many employees are actually “on call” through mobile devices at any waking hour, it is commonplace for personal communications to be sent through employer issued tools, because that is the device the employee is carrying – for the convenience of the employer.

Justice Scalia wrote a concurring opinion, advising that he disagreed with the "operational realities" inquiry referenced in the majority opinion.  Justice Scalia would have held that government searches to retrieve work-related materials or to investigate violations of workplace rules -- searches of the sort that are regarded  as reasonable and normal in the private-employer context -- do not violate the Fourth Amendment.  Thank you, Justice Scalia, for acknowledging that private employer’s have a legitimate interest in enforcing violations of workplace rules, even on mobile communication devices. 

Virginia Henschel is Vice President of E-Discovery Affairs for Applied Discovery. In this role, she advises clients on best practices for litigation readiness for e-discovery, including data mapping, database development, litigation hold notices, meet and confer preparation and managed reviews. Ms. Henschel previously served as E-Discovery Counsel for Sunoco, Inc., specializing in multi-district, complex litigation. Prior to joining Sunoco, Inc., she served as Assistant General Counsel for a global Fortune 500 corporation where she managed global risk and litigation.

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