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A dispute over the limits of privacy in Corporate America has broken out in Keno Thomas’ lawsuit against his former employer, Starz.
The sales and marketing executive blames his termination on speaking up about alleged illegal practices at the television company and advocating for gender and racial equality within the network. In July 2016, a judge allowed him to march forward on the claim that he was fired for refusing to fabricate revenue numbers.
Now, the parties are exchanging documents, but Starz is resisting a demand that the personal smartphones and email accounts of both employees and ex-employees be searched for relevant communications related to his case.
“Plaintiff fails to cite a single judicial decision permitting a private employer to seize and search employees’ personal cell phones, nor has Defendant found any,” states Starz‘ attorney Eric Amdursky in a new court filing. “If this Court makes such an order, it will not only be the first to do so — it will very likely cause alarm amongst millions of Americans who must suddenly fear that, tomorrow, their employers will suddenly assert ‘control’ over their cell phones.”
The Federal Rules of Civil Procedure require production of relevant material in the “possession, custody, or control” of a party.
On Tuesday, Thomas submitted a declaration aimed at supporting the notion that Starz has exerted control over its employees’ personal electronics.
He recalls an incident that happened seven years ago.
“In July 2010, Starz CEO Chris Albrecht sent an email discussing the forthcoming termination of Chris McGurk and Danny Rosett, two senior executives of Overture Films, which was a unit of Starz at that time,” he states. “While intending to send this email only to certain senior executives, Mr. Albrecht accidentally sent it to approximately 400 Starz employees and executives.”
Thomas continues, “Following this embarrassing incident, Mr. Albrecht instituted a policy among Starz senior executives (myself included) that they should limit their use of traceable communications regarding sensitive matters where possible. I believe that senior executives at Starz and agents followed this policy when communicating regarding various issues involved in my case, and used personnel cell phones and/or email addresses, in addition to verbal communications, in an effort to shield sensitive communications from future discovery.”
His attorney Brian Olney is now telling magistrate judge Alexander MacKinnon that Starz is stonewalling, that not only does Starz have a policy for permitting employees to use personal cell phones for work plus an employee handbook claiming the right to search employees’ personal belongings on company premises, but that it even helps to pay the cell phone bills for employees. He insists that it is “highly likely” that responsive documents are stored on the personal electronic devices and email accounts of employees. Olney also says he’s seeking information from Starz for eight current employees with subpoenas dealing with information from ex-employees.
As for precedent, Olney points to one case — Miniace v. Pac. Mar. Ass’n — from a decade back, where a judge granted a motion to compel discovery of personal documents on the basis that “control” was established. Starz insists that this case had “nothing to do with employee’s personal electronic devices,” only work-related documents, while Thomas’ side responds that “control” isn’t “based upon the format of the responsive information.”
Starz is kicking up a fight over what it sees as a computer strip search of its employees.
“Although employers’ lack of any legal right to demand employees’ personally-owned electronic devices is reason enough to deny Plaintiff’s demand for them, Plaintiff’s demand also implicates significant privacy concerns,” writes its lawyer, who then cites one judge as writing, “It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.”
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