The Google Tornado: Just How Ground-Breaking Is The "Right To Be Forgotten"

Privacy & Cybersecurity Update - March 2014

Business News Digest – March 2014

Snowden certainly started a conservation!

No matter what your opinioin of the Snowden/NSA affair, he certainly has brought the converstaion regarding privacy to the forefront.
---------------------------------------------------------------------------------------------------------

Practical Tips for APAC Ediscovery

Google Case Provides Spoliation Exception to Living Document Safeguard

On the 10th Day of Privacy, my employer gave to me …..

AJESH TANK, Plaintiff, v. T-MOBILE USA, INC - Employee Rights, Privacy Laws, Cell Phone Use

Plaintiff Rajesh Tank filed a Complaint against Defendant T-Mobile USA, Inc. on December 21, 2012. Defendant filed a Motion to Dismiss the Complaint on January 28, 2013, which Defendant subsequently withdrew without prejudice and with leave to re-file on February 5, 2013. Plaintiff then filed a First Amended Complaint ("FAC") on February 27, 2013, alleging four counts against Defendant: (I) Defendant violated the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 2011 et seq.; (II) Defendant discriminated against Plaintiff by denying him equal terms, conditions, benefits, or privileges of employment because of his race or national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (III) Defendant terminated Plaintiff's employment because of his race or national origin, in violation of Title VII; and (IV) Defendant retaliated against Plaintiff for engaging in protected activity, in violation of Title VII.

Plaintiff was an employee for Defendant from approximately January 2000 through his termination on August 4, 2010, serving in a variety of management roles, including Vice President of Engineering and Operations at Defendant's Chicago corporate office. Throughout his employment, Plaintiff received strong performance evaluations and numerous company awards. Plaintiff was born in India and is non-white.

Defendant collects its customers' proprietary network information ("CPNI") in the course of its operations as a telecommunications provider; this information included when calls were made, to whom, and for how long. Employees of Defendant, including Plaintiff, often subscribed to Defendant for their own personal cell phone service. In late May 2010 or early June 2010, Defendant improperly accessed Plaintiff's and other employees' CPNI while conducting internal investigations of Plaintiff and other employees; Defendant did so without first obtaining Plaintiff's consent, in violation of the TCA. Plaintiff did not learn of Defendant accessing his CPNI in 2010 until May 2012. Defendant lacked procedural safeguards for protecting customers' CPNI and did not have a policy for obtaining consent from customers before accessing their CPNI, which led Plaintiff to believe that Defendant's practice of improperly accessing customers' CPNI was routine and prevalent.

Defendant's white employees received higher pay and more lenient discipline for wrongdoings, as compared to Plaintiff and other non-white employees. For example, Plaintiff learned of an incident in October 2009, involving a General Manager in a Kansas City T-Mobile office who mocked people with Indian accents in front of other employees. Plaintiff reported the incident to Human Resources; however, that General Manager was put on a performance improvement plan, and not terminated, as Defendant's policy requires. Consequently, Plaintiff, questioned Human Resources over the lenient punishment and urged further action, causing Defendant's Director of Human Resources to eventually terminate the General Manager.

After that incident, the Human Resources employee who had investigated the incident, Lisa McAuliffe, warned Plaintiff on approximately April 26, 2010, that he was on her "shit list" and that he should "watch out." Because of McAuliffe's statements and other similar incidents, Plaintiff prepared a memorandum detailing all his observations of discriminatory conduct and treatment by T-Mobile employees and gave it to Mavers, the Director of Human Resources, in June 2010, who told Plaintiff, "I wouldn't submit this if I were you."  Plaintiff interpreted this statement as a warning of potential retaliation against him and his potential termination if he submitted the memorandum to Human Resources.

Plaintiff alleges three counts against Defendant for violation of Title VII under the theories of unequal treatment, improper termination, and retaliation against protected activity, as well as a claim against Defendant for violation of the TCA.

Judicial Notice of Matters of Public Record

The proceedings of Tank I are properly considered in this analysis, as they are matters of public record. Judicial notice is proper when facts are "(1) not subject to reasonable dispute and (2) either generally known within the territorial jurisdiction or capable of accurate and ready determination through sources whose accuracy cannot be questioned." Ennenga, 677 F.3d at 773-74 (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997)). District courts have previously determined that contents of court dockets and court proceedings from other cases satisfy the conditions cited by Ennenga and are judicially noticeable. See, e.g.,Facebook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 771 (N.D. Ill. 2011)(citing Gen. Elec. Capital Corp., 128 F.3d at 1082). A decision by the district court to take judicial notice is reviewed under an abuse of discretion standard. Gen. Elec. Capital Corp., 128 F.3d at 1081.

LEGAL STANDARD

Defendant's Motion to Dismiss does not specifically invoke a Federal Rule of Civil Procedure under which it proceeds for purposes of dismissing Plaintiff's FAC. However, it is apparent Defendant argues the claims asserted in Plaintiff's FAC should be dismissed for violating the rule against claim-splitting. (Def.'s Mem. at 2.) The doctrine of claim-splitting bars a plaintiff from alleging claims that arise from the same transaction or events that underlie claims brought in a previous suit. See Carr v. Tillery,591 F.3d 909, 913 (7th Cir. 2010). Res judicata is a defense which may be raised in a Fed. R. Civ. P. (12)(b)(6) motion for failure to state a claim, and the rule against claim-splitting follows from the doctrine of res judicata. See Ennenga v. Starns, 677 F.3d 766, 776 n.6 (7th Cir. 2012) (citing Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008)). While it is not an affirmative defense enumerated in Rule 12(b), res judicata may be properly raised in a Rule 12(b)(6) motion under the rationale that a plaintiff may plead himself out of court. Muhammad, 547 F.3d at 878. Accordingly, Defendant's Motion to Dismiss is analyzed within the construct of Rule 12(b)(6).

When evaluating a motion to dismiss under Rule 12(b)(6), all factual allegations in the complaint are taken as true, and all reasonable inferences derived from the factual allegations are drawn in favor of the plaintiff. White v. Marshall & Ilsley Corp., 714 F.3d 980, 985 (7th Cir. 2013) (citation omitted). Although a plaintiff need not assert detailed factual allegations in the complaint, such factual allegations must satisfy a threshold of facial plausibility, allowing the court to draw a reasonable inference that the defendant is in fact liable for the misconduct alleged by the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)).

The Doctrine of Res Judicata

The doctrine of res judicata stems from the general rule that a plaintiff must raise, in one proceeding, all possible claims for relief that arise out of a singular event or series of events, or else forgo the right to pursue such claims in a future action. Bernstein v. Bankert, 702 F.3d 964, 995 (7th Cir. 2012) (citations omitted). Also referred to as the doctrine of claim preclusion, the function of res judicata is to bar a party from alleging certain claims in federal court that the party could have raised in a prior suit litigated between the same parties. See Johnson v. Cypress Hill, 641 F.3d 867, 874 (7th Cir. 2011) (internal citation and quotation marks omitted). Res judicata applies when the following three circumstances are present: "(1) an identity of the causes of actions; (2) an identity of the parties or their privies; and (3) a final judgment on the merits."Bernstein, 702 F.3d at 995 (quoting Kratville v. Runyon, 90 F.3d 195, 197 (7th Cir. 1996)).

A cause of action consists of "`a single core of operative facts' which give rise to a remedy." Johnson, 641 F.3d at 874 (quoting Golden v. Barenborg, 53 F.3d 866, 869 (7th Cir. 1995)). "A claim is deemed to have `identity' with a previously litigated matter if it is based on the same, or nearly the same, factual allegations arising from the same transaction or occurrence." Bernstein, 702 F.3d at 995 (quoting Kratville, 90 F.3d at 197). The determination of whether there is identity between parties in later and prior suits involves a fact-specific inquiry into the particular circumstances of a case. SeeBernstein, 702 F.3d at 995 (internal citations and quotations omitted). Lastly, a decision by a court is considered a final judgment on the merits if it is "based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction, or form."Bernstein, 702 F.3d at 995 (quoting Harper Plastics, Inc. v. Amoco Chemicals Corp.,657 F.2d 939, 944 (7th Cir. 1981)).

The Doctrine of Claim-Splitting

The doctrine of res judicata and its application is the basis of the doctrine of claim-splitting; however, claim-splitting may be considered when the two actions are pending simultaneously, with neither action having reached final judgment on the merits.Trading Technologies International, Inc. v. BCG Partners, Inc., Case No. 10 C 715, 2011 WL 3157304, at *3 (N.D. Ill. July 26, 2011). "Courts will dismiss a second suit pending between the same parties for claim splitting if the second suit would be barred by claim preclusion if it is assumed the first suit reached final judgment." Id. (citations omitted). A district court has "a great deal of latitude and discretion in determining whether one action is duplicative of another." Kim v. Sara Lee Bakery Group, Inc., 412 F. Supp. 2d 929, 939 (N.D. Ill. 2006) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)).

Defendant's Motion to Dismiss was denied in part and granted in part. For the reasons provided above, Plaintiff stated a claim under the TCA upon which relief may be granted, and Defendant's Motion to Dismiss Count I is denied. Counts II, III, and IV of the First Amended Complaint were barred on the basis of both claim-splitting and res judicata and are dismissed with prejudice.

AJESH TANK, Plaintiff,

v.

T-MOBILE USA, INCR., Defendant.

Case No. 1:12-cv-10261.

United States District Court, N.D. Illinois, Eastern Division.

August 15, 2013. http://scholar.google.com/scholar_case?case=5957444281291837170&q=Facebook&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2013

Big Data, Big Trouble? Privacy and Legal Concerns with Big Data

Eye on Privacy Newsletter - Sep, 2013 - JD Supra - Download PDF