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‘Textual’ harassment is becoming a much more prevalent issue, as Texas Lawyer reports, but in-house counsel in particular need to be aware of the dangers and pitfalls in retreiving text messages as part of any discrimination or harassment lawsuit.

Imagine a supervisor making an inappropriate remark to one of his direct reports in an after-hours conversation. If he made the comment verbally, and the employee then reported it to the supervisor’s employer, any resulting litigation would have involved the usual “he said, she said” situation, in which lawyers would have challenged the employee’s credibility.

But what if the comment occurred in a text message? Then, lawyers for the company are at a disadvantage, since a written record of the comment exists.

Harassment by text message — or “textual harassment” — is becoming more prevalent. Texas and 45 other states have laws expressly criminalizing electronic forms of harassment, including text messages. Besides the obvious duties involved when investigating a claim of textual harassment, in-house counsel need to be aware of hidden dangers in trying to retrieve text messages or other electronic information as part of an investigation.

When faced with a textual harassment complaint, in-house lawyers for the employer may need to review other text messages as part of an internal investigation. In litigation, employers often want to discover all of the employee’s text messages to uncover communications that suggest the employee welcomed the harassment. An employer also may want evidence that the messages, although inappropriate, were not connected to the workplace or were taken out of context. But can an employer access employees’ text messages outside of a discovery request without violating their expectations of privacy?

The answer may be no, even if the employer owns or reimburses the employee for the BlackBerry, cell phone or PDA device in which the messages are sent and received. The federal Stored Communications Act generally makes it unlawful for employers to intentionally access stored electronic communications such as e-mails and, likely, text messages without an employee’s authorization or in excess of authorization. If, however, the employer is the provider of the communications service used to store the electronic communications, or the employee agrees, the employer may access such communications.

Another applicable law is the federal Electronic Communications Protection Act. It prohibits an employer from intercepting in-transit electronic communications unless the employee consents; the employer is a party to the communication; or the employer provides the electronic communications service and intercepting the messages is necessary to protect the employer’s property rights.

Recent cases interpreting the SCA and ECPA suggest, however, that an employer may not be allowed to access information from personal electronic communication accounts, which would include text messages, even if they are accessed through an employer’s electronic equipment.

According to the U.S. District Court for the Southern District of New York’s opinion in Rozell v. Ross-Holst (2007), an employee claimed she was fired in retaliation for reporting sexual harassment. Her employer paid for her private e-mail account. After the employee’s termination, the employer accessed and read the employee’s private e-mail account and read her personal e-mails, including those to and from her attorney. The former employee accused the company of violating the ECPA by “hacking” into her account, even though the employer paid for the service. The court held that the employer was not automatically authorized to access the account simply because it paid for it.

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