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Employer Investigation Unveiled: The Vanishing WhatsApp Messages

In a recent legal dispute, a former senior executive has been accused of exploiting his position and receiving personal profits from the employer’s sub-supplier. The employer alleged that the employee and sub-supplier conspired together to coverup there wrongdoing. One of these allegations claims that the employee deleted a series of WhatsApp messages in an effort to destroy evidence, and that the sub-supplier has failed to produce the messages. Given the various platforms for messaging, this case illuminates the difficulty in tracking down or recovering messages that can make or break an allegation.

Can deleted WhatsApp messages be used as evidence in a legal dispute?

The employer in this case alleged that prior to handing over his cell phone for examination, the employee deleted the WhatsApp application, thereby deleting the messages sent between the employee and sub-supplier and other related entities. An arbitrator ordered the sub-supplier to produce copies of the messages. The sub-supplier refused, and instead argued that it did not have access to the messages, and that its employees did not consent to the disclosure. Subpoenas were issued to force the production of the messages.

The matter was then escalated to court, wherein the trial court struck down the subpoenas and said that they could not be used to force the production. The court also found that the subpoenas went beyond a demand for the messages and was requesting discovery of an unreasonable scope of documents.

What rights do employers typically have regarding company equipment and employee messages?

This case is a great reminder that employers will typically have the right to go through emails and messages on company equipment, at any time. If something is sent on a company device, employees should expect that the employer has access to it. As explored in this case, things will get trickier on personal devices and messaging platforms. Employer and employees alike should be aware that in the event of a lawsuit, the other party may have the right to go after non-work methods of communication, including text messages and app-based messages. Even if messages are deleted, the other party may be able to push for recovery of last data to use against the sender.

How can seeking legal advice help individuals navigate employment-related legal issues?

To better understand your employment rights and explore the viability of a claim, we encourage employees to seek legal advice. Equally, we encourage employers to speak with a lawyer to understand their rights and obligations, or any other employment concerns. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (647) 951-7038 today.

Author – Rachel Patten


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