Will Sotomayor Weigh-In on eDiscovery? Posted By Daniel Kaiser, Esq. on August 20, 2009
Any edition of the high-court shuffle will always attract attention. Although it is rare to see the Supreme Court ruling specifically on a question of eDiscovery, Court watchers have been interested to see how the addition of Sotomayor might influence the Court in the event of a relevant controversy. 
Having specialized in intellectual property while working with the firm of Pavia & Harcourt, and having at times touched on technology over the course of her more than 150 decisions, appeals court judge Sonia Sotomayer has created a record worth speculating over.
Bringing her history in intellectual property to bear, Sotomayer appeared comfortable in technology-based cases when wrote a few Anticybersquatting Consumer Protection Act cases in the early part of this decade. Examples can be found in Storey v. Cello Holdings, L.L.C.[1] and Mattell, Inc. v. Barbie-Club.com.[2]
Perhaps most specifically relevant to eDiscovery was Sotomayor’s opinion in Leventhal v. Knapek.[3] This wasn’t an eDiscovery case per-se, yet it touched on closely related issues. Here the U.S. Court of Appeals for the Second Circuit (located in New York City) considered and rejected a challenge to the actions of a public employer in its search of an employee’s office computer for evidence of alleged work-related misconduct. Plaintiff Gary Leventhal worked as an accountant for the New York State Department of Transportation (DOT). An anonymous letter, in which plaintiff was not mentioned by name, complained of various acts of job-related misconduct in the DOT’s accounting department including tardiness, absence, and excessive personal pursuits and conversations during DOT work time. In response, the DOT conducted its own variation of eDiscovery, compelling a search of plaintiff’s office computer and the computers of other accounting employees for “non-standard” computer programs. In the face of a Fourth Amendment challenge brought by plaintiff, Sotomayor considered that although a public employee has a “reasonable expectation of privacy in the contents of his office computer,” in this case the search and seizure did not violate plaintiff’s rights to due process.
The court acknowledged that “the Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer.”[4] Sotomayor went on to clarify that “[t]he ‘special needs’ of public employers may, however, allow them to dispense with the probable cause and warrant requirement when conducting workplace searches related to investigations of work-related misconduct.”[5] Finally, Sotomayor stated that “[a] public employer’s search of an area in which an employee had a reasonable expectation of privacy is ‘reasonable’ when ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’ its purpose.”[6]
In this context the Second Circuit ruled the DOT’s search of an employee’s office computer to be justified at its inception and reasonable in its scope – finding that “the searches of his computer were ‘reasonably related’ to the DOT investigation of allegations of [plaintiff’s] workplace misconduct.”
[1] Storey v. Cello Holdings, L.L.C. 347 F.3d 370 (2d Cir. 2003).
[2] Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir. 2002).
[3] Leventhal v. Knapek, 266 F.3d 63 (2d Cir. 2001).
[4] Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).
[5] Citing O’Connor v. Ortega, 480 U.S. 709, 719-26 (1987) (plurality opinion); id. at 732 (Scalia, J. concurring).
[6] Citing O’Connor, 480 U.S. at 726 (plurality opinion) (internal quotation marks omitted).
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