Month: May 2013

ADMITTING PUBLIC RECORDS INTO EVIDENCE AT TRIAL

Under Florida law, government records are often admissible both as business records and public records, but it is generally easier to obtain admission as a public record. An evidentiary proponent may easily authenticate public records by requesting the state supply the record under seal.   It also is not necessary to show the state created the public records at or near the time of the memorialized matter, and therefore it is much easier to admit into evidence than business records.  By contrast, authenticating a business record requires either: (1) a record custodian to testify under oath, (2) stipulation of the parties that the document is a business record, or (3) through a declaration by a person with knowledge that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (b) was kept in the course of the regularly conduct activity; and (c) was made as a regular practice in the course of the regular conducted activity.

In Florida, admission of public records is governed by Florida Statutes § 90.803(8), which references two types of public records. The first type includes records setting forth the “activities of the office,” while the second type includes records setting forth matters observed pursuant to a duty imposed by law as to matters which there was a duty to report.

Regarding the first type of public records, the Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), explained that the purpose of the “activities of the office” exception is to allow public records prepared for purposes independent of specific litigation and does not need to be based on personal knowledge.  Yisreal held that the letter at issue was not an “activities of the office” based public record because the letter was drafted as a gratuitous hearsay letter for the purpose of litigation, rather than a document creating and maintaining Crime and Time Reports, which was the relevant activity of the office.

To become admissible under the second type of public record exception, i.e.,  matters observed pursuant to a duty imposed by law as to matters which there was a duty to report, the following three elements must be shown: (1) the source of the information must have personal knowledge of the information recorded, as the phrase “matters observed” implies, (2) the source must have had a legal duty to both observe and report the information, and (3) the record in question must be one that the public agency or office is required by law to prepare.  Yisreal held that the second type of public record exception was not met because the individual that created the letter did not allege she had personal knowledge, and the Department of Corrections did not have a legal duty to create a litigation-specific letter.

Compared to business records, public records are far easier to admit into evidence because there is no requirement of personal knowledge.  Unlike the business record, this can be accomplished with very minimal planning in advance of trial.

The Mavrick Law Firm represents businesses in commercial litigation, labor/employment law, and real property litigation.  This article is not a substitute for legal advice tailored to a particular situation.  The Mavrick Law Firm can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.

PERSONAL USE OF ELECTRONIC EQUIPMENT IN THE WORKPLACE

The use of computers in the workplace has become so pervasive that, whether or not employers officially permit personal use, such use has become the norm.  Where “reasonable” personal use is allowed, the lines between excessive use and acceptable or normal use may not always be easy to draw.

For example, Coleman v. Review Bd. Of the Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015 (Ind. App. 2009), held that an employee who was discharged for violating the employer’s e-mail policy forbidding more than “de minimus use,” was entitled to unemployment compensation because the policy provided no ascertainable standard and the employee’s e-mail traffic was scarcely excessive.

Another example, Bowman v Butler Twp. Bd. Of Trs., 923 N.E.2d 663 (Ohio App. 2009), held that a town could not discharge its firefighter employees for viewing violent, but non-pornographic videos.  The court explained that the town provided no guidance other than that “ethical standards should be observed,” and also permitted its firefighters to use firehouse computers for personal use in their downtime.  Undefined “ethical standards” were too vague to be enforceable against the employees.

The situation becomes a bit more complicated when it involves a public sector workplace, because a government employer’s monitoring of its own employees’ electronic communications is subject to scrutiny under the Fourth Amendment.  In City of Ontario, California v. Quon, 130 S.Ct. 2619 (2010), the United States Supreme Court recognized that it must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.  The Supreme Court explained that applying too broad a holding concerning employees’ privacy expectations would “risk error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”  The Supreme Court made it clear that the result in Quon is to be interpreted narrowly, to avoid unintended implications on future cases that cannot be predicted.  Quon dealt with a governmental employer asserting that it had the right to read text messages sent and received on a pager the employer owned while issued to an employee. There were “reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose.”  The Supreme Court held that, while the employee did have a reasonable expectation of privacy as to the content of his text messages, the search by the employer was reasonable under the “special needs” of the workplace exception.  That exception applied because the city was seeking to ensure it was not paying for extensive personal communications.  

In the age of thriving technological advances and the prevalence of many different social media outlets, the question of the reasonableness of an employee’s personal use of computers in the workplace, or other electronic communication devices, is one that ripe for debate.

The Mavrick Law Firm represents employers in labor and employment law matters.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.

CUSTOMER RELATIONSHIPS AS TRADE SECRETS

Businesses enter into non-competition and confidentiality agreements with employees to protect trade secrets, which are usually in the form of specific practices, processes, designs, or a compilation of information.  The agreements are designed to deter misappropriation of the trade secrets after the employment relationship has ended.  The most frequent issue in non-competition or confidentiality agreement cases is establishing that a customer list constitutes a protectable trade secret, as opposed to a list that merely identifies commercially available information regarding the company’s clientele.

Florida appellate courts have explained that a former employer’s customer relationships do not automatically qualify as trade secrets.  This is so even when a party’s restrictive covenant attempts to nominally characterize them as trade secrets.  To qualify as a trade secret, there must be evidence that a customer list: (1) was the product of great expense and effort; (2) that it included information that was confidential and not available from public sources; and (3) that it was distilled from larger lists of potential customers into a list of viable customers for a unique business.

In East v. Aqua Gaming, 805 So.2d 932 (Fla. 2d DCA 2001), the former employee, i.e., Mr. East, used client lists obtained from his former employer, i.e., Aqua Gaming, to get the very business accounts that Aqua Gaming cultivated during Mr. East’s employment. The list included casinos, vendor names, telephone numbers, addresses, and client contacts compiled by Aqua Gaming over a number of years.  The customer list qualified as a trade secret because it was the product of Aqua Gaming’s great expense and effort, not available from public sources, and distilled from a larger list of potential customers into a list of viable customers for its gaming business.

By contrast, a customer list is not a trade secret when it is merely compiled from publicly available information.  In Sethscot Collection v. Drbul, 669 So.2d 1076 (Fla. 3d DCA 1999), plaintiffs sued to enjoin the defendant from utilizing a list of prospective customers.  The list contained the names of 9,600 social fraternities and sororities.  Since the information was obtained from commercial materials readily available to the public and not the product of any great expense or effort, it did not qualify as a trade secret.

However, the court in Sethscot enjoined the former employee from using his former employer’s “active” customer list as distinguished from its “prospective” customer list.  The active customer list contained the names of approximately 6,800 sororities and fraternities that actually ordered from the plaintiffs over the course of eight years.  The active customer list also contained detailed purchase history for each sorority and fraternity on the list.  While the former employee was barred from using the active customer list, he was still allowed to use contacts, expertise, and even customer lists he personally developed.

Peter T. Mavrick has successfully represented many businesses in trade secret and non-competition covenant litigation.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.

 

PRIVACY RIGHTS IN AN EMPLOYEE’S PERSONNEL FILE

Is there a right to privacy in an employee’s personnel file?  A recent Florida appellate court case Walker v. Rout, 2013 Fla.App. Lexis 6466 (Fla. 5th DCA 2013), analyzed this subject in depth.  The court observed that personnel files undoubtedly contain private information.  See, for example, Regan-Touhy v. Walgreen Co, 526 F.3d 641 (10th Cir. 2008), which explained that, while not categorically out of bounds, personnel files contain sensitive personal information, and trial courts are not unreasonable when being “cautious about ordering their entire contents disclosed willy-nilly.”  In Walker, the employee’s whereabouts were unknown and therefore, he did not have the opportunity to personally assert a privacy objection. The court explained that the employee’s absence did not necessarily mean that such important non-party rights should not be considered, or that the right to privacy and the right to knowledge should not be weighed during the discovery process.  When privacy rights are implicated, discovery should be narrowly tailored to provide access to discoverable information while safeguarding privacy rights.

The court observed that it was likely that the employee’s personnel file contained information about his compensation, benefits, pension, and the like which would not be relevant to the lawsuit, but would be highly intrusive to the employee’s privacy interests if disclosed.  In contrast, any information regarding the employee’s training, competence, abilities, and disciplinary history may be relevant to the underlying action.  Therefore, the appellate court in Walker concluded that the trial court erred when it allowed all of the contents in the personnel file to be disclosed without first conducting an in camera inspection to segregate the relevant documents which were discoverable from the irrelevant documents which were not.  See, for example, Beverly Enters. Fla, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000).

An employer has no privacy rights in an employee’s personnel file.  Although an employer lacks standing to assert its employee’s privacy rights in the employee’s personnel file, an employer has standing to oppose the production of private information within the file on the ground that the information was not relevant to the litigation.  See, for example, Alterra Healthcare Corporation v. Estate of Shelley, 827 So.2d 936 (Fla. 2002).

Peter T. Mavrick represents businesses in commercial litigation, labor/employment law, and real property litigation.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.