WASHINGTON, D.C.-- A Minnesota magistrate judge violated the privacy rights of two Northwest Airlines flight attendants when it ordered a search of the hard drives of their home computers by an accounting firm hired by their employer, Public Citizen argued in an appeal filed in federal district court today.
According to Public Citizen’s brief, under the normal course of discovery, each party is responsible for searching its own files for evidence relating to a case. Not only is there no reason to depart from that approach when files are stored on personal computers, but differences between computer files and paper copies argue strongly for providing extra protection for the privacy of individual employees’ home computers.
"Because airline employees travel so extensively, they are highly dependent on their computers to communicate with each other about union affairs," said Paul Alan Levy, an attorney for Public Citizen Litigation Group, which is representing the two flight attendants. "The magistrate judge's order forcing several employees of Northwest Airlines to turn over their hard drives to an accounting firm hired by their employer has had a serious chilling effect on employees' use of their computers." Barbara Harvey, a Detroit labor lawyer, is also representing the flight attendants in the case.
Computer forensics expert Jeff Fischbach explained in an affidavit supporting the appeal that allowing a search of a home computer by an agent of the flight attendants’ employer sets a dangerous precedent that threatens the privacy of computer owners, akin to revealing their most private thoughts. The attendants explain in their affidavits how violated they felt when banking records, correspondence with friend and families, and other highly private materials were turned over to the accountants to be reviewed.
Northwest obtained the order against Kevin Griffin, a flight attendant based in Hawaii, and Ted Reeve, a flight attendant based near Los Angeles, after obtaining a temporary restraining order against the two men. The company sought the restraining order without providing notice to the flight attendants, and it based its request on allegations that the flight attendants shared responsibility for calling a "sickout" over the New Year’s holiday. The restraining order was dissolved after Northwest decided that it did not have enough evidence to win at a preliminary injunction hearing.
In the meantime, however, Northwest persuaded a magistrate judge to allow the accounting firm, Ernst and Young, to copy the hard drives of the attendants’ home computers for any documents that may have some relationship to the case -- an unprecedented invasion of privacy.
Ernst and Young was portrayed by Northwest as a neutral third party, although documents obtained since the order was entered reveal that Ernst and Young is not only a regular client of Northwest’s law firm in the case but has entered into a "strategic alliance" with that firm. Moreover, although the magistrate judge attempted to build privacy protections into his search order, those protections proved inadequate because Northwest and Ernst and Young repeatedly disregarded these safeguards.
Although the computers have been searched and much material has been turned over, some materials have not yet been searched and printed. Public Citizen’s appeal asks the district judge to reverse the search order, to relieve Griffin and Reeve of any further obligations to release information from their hard drives under that order, and to direct Ernst and Young to destroy the copies of the hard drives it has.
"We hope that the district judge will agree that this was an unwarranted invasion of the flight attendants’ personal privacy and will rectify the wrong by reversing the order before any more information is turned over," Levy said.