Here is a good law.com article that raises the question, “Just when should an employer have access to a departed employee’s home computer or personal e-mail account?”
Consider a disability claim where an employer (as disability benefits insurer and defendant) seeks information about the time a departed employee who is claiming he has a total disability spends surfing the internet. Assume that seeking production of the employee’s home computer is a rational request because the employee has given evidence in discovery that he lives alone and is the sole user of his home computer. Is production of the home computer for forensic analysis justified or is this a just fishing expedition?
In Canada, there is a trio of British Columbia cases with facts not unlike this scenario: see Park v. Mullin, 2005 BCSC 1813, Ireland v. Low, 2006 BCSC 383 and Desgane v. Yuen, 2006 BCSC 955. In all three cases the British Columbia Supreme Court declined to order production of hardware after weighing the evidentiary value of the proposed production against the plaintiffs’ privacy rights.
It’s one thing, however, to fish for an employee’s personal information because it might be assistive. It’s another to seek production of evidence that’s not particularly personal or sensitive and that is central to the claim.
Now consider an employer who sues a departing employee for breach of confidence. An employee who takes business records needs to put them somewhere. The most obvious receptacle is his or her home computer.
Assuming the claim has merit, should the employer be entitled to know for sure whether the employee has (or has ever had) custody of its records? Is the probative value of the proposed production not very high given the difficulty in proving misuse of confidential information? In the context, is production of the actual computer warranted despite all the personal information it is likely to contain? I’m not aware off-hand of any Canadian breach of confidence cases in which production of a departed employee’s home computer has been ordered, but in the Ameriwood case cited in the law.com article a Missouri court answered these questions in the affirmative.