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Legalease
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Experience:  15 years exp all aspects of general law
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I suspect that an employee is sharing information and conspiring

Customer Question

I suspect that an employee is sharing information and conspiring with a competitor via text messaging on their company owned phones. Can I subpeana or obtain records even though AT&T claims they do not keep that information?
Submitted: 3 years ago.
Category: Legal
Expert:  Richard replied 3 years ago.

Good morning. First, as to your direct question...yes, you can obtain these texts, but you must show probable cause. Second, if you have suspicions about this employee, you can fire him to prevent any further problems. Since 1891, Pennsylvania has subscribed to the theory of employment at will. Thus, as the court noted in Stumpp v. Stroudsburg Municipal Authority 540 Pa. 391, 396 (1995), "as a general rule, employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason."

 

 

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The information given here is not legal advice. As all states have different intricacies in their laws, the information given is general only. This communication does not establish an attorney-client relationship with you. I hope this answer has been helpful to you.

Customer: replied 3 years ago.
How do I obtain the records from the cell phone company, when they say they don't store that information (which is a standard answer from what I can tell)?
Expert:  Legalease replied 3 years ago.

Hello. Unfortunately, you will have to present AT& T with a court order or a court issued subpoena to obtain this information from them. To get either, you would either have to bring some type of criminal charges against the employee and the police would be investigating the matter (then the police can apply to a judge for an order or a subpoena to get those records -- but the police would have to show the court that they have some type of probable cause and evidence of wrongdoing involving activity on the cellphone by this employee in a criminal context before a court would issue an order to AT&T to turn over those records). Based upon your description, I do not see anything here that would rise to the level of criminal behavior that would warrant your getting the local police department involved, so that avenue is not going to work. The other way to get a subpoena issued for these records would be if you were involved in a lawsuit with this employee -- either he/she sued you for possible wrongful termination (if you fire the employee) OR, if you have a non compete, no solicitation agreement with this employee and your company, you CAN fire him/her and sue in civil court for damages caused to your company -- and as part of the the "discovery" process where each side gathers evidence that can be used against the other side at trial, you can have a subpoena issued and signed by the court clerk and sent to the "Keeper of the Records" at AT&T to gather and release an itemized list of telephone calls made to and from this employee's telephone number.

 

Unfortunately for you, even though they are company owned cell phones, the employee still has a reasonable expectation of privacy in the calls that he/she makes or receives on the company cellphone and AT&T does not want to be sued by the employee either, so AT&T and all of the other cell phone and hard line phone companies play these things very close to the vest these days and they try at first to simply tell you that you cannot get the information, period. However, when faced with a subpoena or a direct court order, they will suddenly come up with the information needed so long as the request is within the time frame that they actually do keep these records (most of these cellphone companies keep these records for about the past 12 months or so and they typically do not go back much further than that -- and there are no federal or state laws requiring them to keep the information regarding each incoming and outgoing call for any length of time, so it is completely up to each company to decide on that matter). I do believe that there are cellphone plans where you can still get itemized lists of incoming & outgoing calls -- but you now have to pay an additional FEE to get that information regarding each line that you pay for every month and I think it can be quite pricey -- something like an additional $30 per month per line simply to get an itemized list each month with the bill for the cellphone (which is funny because these lists used to be provided for free every month with the cellphone). For future reference, you should see if AT &T offers this particular service.

 

My suggestion to your immediate problem is as my colleague's above -- you CAN terminate him so long as there are no union contract issues or employment contract issues (if either of those situations exist, you should have an attorney review the contract before termination just to make sure that you are following the letter of the contract or you are following the union rules). If you terminate this employee and he/she sues you for that, then you will have the power to get that subpoena because you will then be involved in a lawsuit with this employer. In addition, as I mentioned earlier, if you have a non compete / no solicitation agreement, you can yourself bring suit using the agreements as a basis for the lawsuit -- and in the discovery process you can get the subpoena issued for the itemized cellphone records that you will need to prove the ongoing solicitation of other business.

 

I wish I could tell you that AT&T must turn these records over to the owner of the phone (whomever pays the bills), but I cannot do that because this is a complicated process which can get very sticky -- and even the police in criminal investigations will tell you how difficult it is to get these records if they need them for something in a criminal investigation -- we had a local case here where a woman went missing for 4 days and the police could not find any evidence of foul play so they had to assume that she left of her own accord -- and because they could not show even a small bit of proof of foul play to a judge, the judge would NOT grant an order for the cellphone records of this woman to try to get a location on her. Finally, 4 days later a friend told the police that she suspected that the woman's boyfriend had done something to her -- and that was enough to get the cellphone records -- so the police used GPS in the cellphone and her calls to find her -- and it turned out that she had simply taken off to the west coast and was extremely furious that she had been tracked down using her cellphone. SO, you can see what even the police are up against in trying to get these records from the cellphone companies.

 

 

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Edited by Mary M., Esquire on 11/10/2010 at 6:44 AM EST
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14454
Experience: 15 years exp all aspects of general law
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