Can an Employer Subpoena a Former Employee’s Cell Phone Records?

A federal district court in California recently held that an employer could subpoena a former employee’s cell phone records as part of discovery in a pending lawsuit.

In Kamalu v. Walmart Stores, Inc., the plaintiff sued her former employer, alleging discrimination on the basis of national origin, race, and sex, and wrongful termination in violation of public policy.  The employer asserted that the plaintiff’s termination was based on legitimate business reasons, including that the plaintiff was terminated for stealing time and misrepresenting her working hours.  To obtain evidence to show that the plaintiff was using her cell phone when she should have been working, the employer issued a subpoena to her cell phone provider and requested the following documents:

  1. All incoming and outgoing cellular phone and text message records for the employee’s phone number during her employment;
  2. All records regarding any data used by the device associated with the employee’s phone number during her employment; and
  3. Invoices for the employee’s phone number during her employment.

In response, the plaintiff brought a motion to quash the subpoena, which the district court denied.  The district court held that the records were “directly relevant to Defendant’s defense that Plaintiff was terminated for misrepresenting her working hours.”  The court also held that the records could potentially support a defense based on after-acquired evidence, even if the plaintiff was never counseled for improperly using her cell phone during her employment.

The court also rejected the argument that the subpoena unnecessarily invaded the plaintiff’s privacy rights, emphasizing that the subpoena only sought information about what calls or messages occurred and how long they were, but not the content of any of the communications.  In addition, the court held that the plaintiff had no expectation of privacy in business records maintained by a third-party to whom she voluntarily conveyed the information.

Takeaway:  In certain cases, an employee’s cell phone records may provide valuable information that can assist an employer in defending against the employee’s claims.  The Kamalu decision supports the ability of an employer to subpoena these records provided that it can establish the relevancy of the records to the litigation.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on October 22, 2013, in Litigation, Privacy Rights, Technology and the Workplace and tagged . Bookmark the permalink. Leave a comment.

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