Employees’ smartphones as potential sources of evidence

August 04, 2013 - by: Northern Exposure 0 COMMENTS

By Antoine Aylwin and Edith Charbonneau

Your employee quits his job and returns his smartphone. It contains information that shows he was scheming against you. What can you do with this? Could you use the e-mails found in the smartphone as evidence? This question was recently ruled upon by the Quebec Superior Court in Les Images Turbo inc. v. Marquis.

In this case, Les Images Turbo inc. (Turbo), a business specializing in truck and bus lettering, sued its former employee (Ms. Marquis) as well as her future employer (Lettrapub) and its director (Mr. Chassé) for unfair competition. One of the questions raised at trial was whether Marquis’ e-mails, found on her smartphone after she left, were admissible as evidence.

Facts

Marquis began working for Turbo in 2005 as a sales representative and eventually became head of major accounts. Dissatisfied with the way clients were attributed and with some of the directions taken by the company, she decided to change jobs. She then met Chassé, director of Lettrapub, one of Turbo’s competitors. A series of communications ensued between the two, including by e-mail. Finally, Marquis left Turbo on May 9, 2012, to work temporarily for a third party during the term of the noncompete clause contained in her employment contract.

On the day she left, Marquis returned her smartphone to Turbo. She had used it to access her private e-mail account, which she used for her work at Turbo.

Around May 18, 2012, Turbo reviewed the contents of the smartphone and accidentally discovered the e-mails exchanged between Marquis and Chassé. Turbo then decided to keep the smartphone active. It continued to receive various e-mails until June 1, 2012.

Ruling

In this case, the court indicated that the e-mails stored on the employee’s smartphone would be inadmissible if they were obtained in breach of Marquis’ fundamental rights and freedoms and if their use would bring the judicial system into disrepute.

By applying this rule, the court allowed the production of virtually all the e-mails received before the smartphone was returned to Turbo. According to the court, under the circumstances it was the exclusion of these e-mails, not their admission, that would have brought the judicial system into disrepute.

However, the court disallowed the production of e-mails received after the smartphone was returned to Turbo on the grounds that they had been obtained in breach of Marquis’ fundamental rights and with the intent to improve Turbo’s evidence. Although the court clearly frowned upon the fact that Turbo accessed Marquis’ personal incoming e-mails, it dismissed her claim for damages in that respect.

Even if the court allowed the production of most of the e-mails, it dismissed Turbo’s motion against Marquis, Lettrapub, and Chassé, given the absence of unfair competition.

Lesson to employers

This decision illustrates that it’s the exclusion, and not the admission, of private e-mails obtained by an employer from its own equipment that will often be objectionable. One reason for this is that a party can always demand the introduction of evidence by demonstrating its relevance.

Before using e-mails found on an employee’s smartphone as evidence, employers should consider the following questions:

  • Who owned the phone?
  • What use did the employee make of it?
  • What steps did the employer have to take in order to obtain the information?
  • What are the private (rather than public) interests of the action?
  • What is the employer’s objective?

It’s important to note that in this case the admissibility of the e-mails as evidence would have been easier had the employee used her professional e-mail address rather than her personal one.

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