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Can an employer investigating an employee recover deleted messages?



The trial court refused. The subpoenas were “hearing” subpoenas, which were authorized under section 1282.6 of California’s Code of Civil Procedure, and were not discovery subpoenas, the trial court said.

Employees need not comply with subpoenas

In the case of McConnell et al. v. Advantest America, Inc. et al., the California Court of Appeal for the Fourth District, First Division reversed the decision.

The appellate court ordered the trial court to cancel the arbitrator’s order compelling the Lattice employees to comply with the subpoenas. The subpoenas were improper discovery subpoenas despite being labeled “hearing” subpoenas, the appellate court said.

Advantest was entitled to obtain copies of the WhatsApp messages from the Lattice employees since it could not get this evidence from Kabbani, its own employee, the appellate court acknowledged. However, the subpoenas issued here went beyond getting these messages and amounted to discovery, the appellate court found.

Specifically, the subpoenas asked for messages sent via seven other messaging apps and other messaging services or platforms relating to five broad categories, including Lattice’s finances and its business in the semiconductor test industry.

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