Thursday, February 3, 2011

Are you searching employees’ work computers as part of litigation?

If you’re not searching a plaintiff’s work computer during litigation, this story may cause you to reconsider.

Tim Marcum is the head coach of the Arena Football League’s Tampa Bay Storm. He’s the most successful coach in the league’s history, winning 7 Arena Bowls. He’s now trying to win a different kind of fight, having sued the team’s former owner for unpaid salary. As part of the lawsuit, the defendant examined Marcum’s work computer, which revealed various displays of pornography and racist emails. For example:

  • Videos of women having sex with horses.
  • A video of two naked women using a funnel and fish to commit an unnatural sex act.
  • A picture of Air Force One as Watermelon One.
  • An email comparing Michelle Obama to a chimpanzee.
  • Frequent use of the “N” word in other parodies and email.

For his part, Marcum does not deny that he received or re-forwarded the offensive emails, pictures, and videos. Instead, he maintains that they would only be considered inappropriate if someone else accessed his email. and that they should not be an issue because he only shared them with friends. Tampa Bay news station WTSP shares excerpts from Marcum’s videotaped deposition:

Proper computer searches that forensically preserve the evidence for trial can be expensive. However, you do not know what you will find until you do the examination. Workplace pornographic and racist emails will be relevant in most employment lawsuits. After acquired evidence, theft of time, and proving a work environment is not subjectively hostile are but a few examples of their possible use. Between social media, emails, and other technology, there are fewer and fewer secrets between parties in litigation. The trick for businesses is to hire attorneys that know how to harness these tools for your benefit and properly advise you of the risks and dangers inherent in your own technology.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or