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Law Firm Wins Fired Lawyer’s Suit Over Analyzing Cell Phone Data

March 18, 2021, 9:10 PM

The law firm Zukowski, Rogers, Flood & McArdle didn’t violate the Stored Communications Act by having data extracted from a fired attorney’s smart phone, because only the phone’s internal storage was accessed and copied, a federal court in Illinois said Thursday.

ZRFM paid for attorney David Loughnane’s cell phone and its associated bills. The firm had no written policies on attorneys’ use of their firm-funded phones, and Loughnane used his for both work and personal purposes.

The firm required workers at the end of their employment to return cell phones for which it paid. When Loughnane was terminated in 2017, the firm sent his phone to D4 LLC for extraction and forensic analysis of its internally stored data. D4 provided a summary of its findings and a copy of the data to ZRFM and the firm’s own counsel Hinshaw & Culbertson LLP.

Loughnane sued ZRFM, Hinshaw & Culbertson, a number of employees of both firms, and D4.

The U.S. District Court for the Northern District of Illinois granted summary judgment to the law firm and the other defendants.

An individual’s smartphone or personal computer doesn’t fall within the ambit of the Stored Communications Act when only the data on its local storage drive is accessed, and the device isn’t used to access any data stored on an external Internet-based account or server, the court said.

“While the Seventh Circuit has yet to address this issue, nearly every court to have done so has agreed with this view,” the federal court said. In enacting the law, “Congress was particularly concerned about data stored in the hands of electronic service providers, and did not set out to protect data stored in a personal computer,” the court added.

Loughnane’s SCA claim failed because D4 gathered his phone’s data solely from internal storage while the phone was in airplane mode and couldn’t be used to access or extract data from an Internet-based account or server, Judge John Z. Lee said.

With the SCA claim dismissed, Lee relinquished jurisdiction of Loughnane’s claim for intrusion upon seclusion under state law.

Loughnane represents himself. Schain Banks Kenny & Schwartz Ltd. and Hinshaw & Culbertson represent the defendants.

The case is Loughnane v. Zukowski Rogers Flood & McArdle, N.D. Ill., No. 1:19-cv-00086, 3/18/21.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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