Posted 09 October 2012 - 08:19 AM
Posted 09 October 2012 - 11:55 AM
Ultimately, unless she complained to the employer that you were harassing her and they did nothing and the behavior continued, there's no there there in terms of viability of complaint.
"Should i retain my own lawyer."
I don't see why you'd bother, since your employer's free to fire you for no reason at all.
"Can they pull and use all records or only the ones relative to the case pending."
Not sure who you mean by "they" but the chance of the EEOC filing suit and subpoenaing stuff from your phone is unlikely. As for the employer, even if this phone is a corporate phone and the cell company stores texts, the custodian of records won't just cough it up on request in the normal course; it would want a subpoena.
I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics. If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable. Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.
Posted 09 October 2012 - 12:07 PM
Posted 10 October 2012 - 01:41 PM
The sexual harassment in question was not the reason why she quit the job.
This is important. That she quit the job means that she'd have to prove that the alleged harassment was so terrible that no reasonable person would have remained with the job. That's a lot tougher than a case in which an employee is fired.
My employers have retained their own counsel, but i dont think they have MY best interest in mind. Should i retain my own lawyer. . . . I dont think i have attorney client privilages seeing as how they are not my attorneys.
Under a lot of circumstances, your employer would have the obligation to defend and indemnify you. The problem here is that, even if the text messages (and whatever relationship you had beyond text messages), even if consensual, were phenomenally stupid. It is arguable that a conflict of interest exists such that a lawyer could not properly represent both you and your employer. However, you should clarify whether these attorneys are representing only your employer or both you and your employer. As far as the attorney-client privilege, you can be relatively confident that anything you tell these lawyers is privileged as against anyone other than your employer. However, even if a joint representation exists, it would be a hard sell that the lawyers have any duty to keep things you tell them confidential from your employer.
im not worried about proving my innocence, but the harassment in question is not the only thing on my phone. Can they pull and use all records or only the ones relative to the case pending.
Despite your follow up, it's still not really clear who "they" are. You said your employers (more than one?) "are pretty well connected in town. very tight with the judge whos wife is a lawyer. Thats who 'they' refers to." So, are "they" your employers? The judge (being "connected" to a local judge doesn't mean much when we're talking about an EEOC complaint)? The judge's wife? All of the foregoing?
In any event, and while I understand you might not want to say, but what else do you have "on your phone"?
As far as someone potentially subpoenaing your text messages from your mobile service carrier (which is what I'll assume you're talking about when you refer to "pull[ing] . . . records," it should go without saying that your text messages fall into two basic categories: (1) messages between you and the former employee; and (2) messages between you and everyone else. Presumably, your service provider could relatively easily identify and produce copies of your messages with the former employee (by using her mobile number(s)) and exclude all others. Perhaps that set of messages is exactly the same as messages that you characterize as "relative to the case pending." If that's the case, then there should be no issue here. On the other hand, maybe you are of the opinion that not all messages between you and the former employee are "relative to the case pending." If that's the case, you'll have a really hard time with this. The question would be how, as a practical matter, your service provider could distinguish between those messages that are "relative to the case pending" and those that are not. This is all premature until and unless you and/or your employer actually get sued.
One last thing. Your statement that "the harassment in question is not the only thing on my phone," together with your statement that you had deleted the allegedly incriminating messages, suggests you may be concerned with things other than text messages. Without knowing what else you might be concerned with, it's difficult to comment. Certainly, in the context of a lawsuit, someone could seek to compel you to produce your actual phone for inspection, and your mobile service provider might not have access to everything that is "on your phone."
Posted 10 October 2012 - 01:45 PM
I dont know for certain, but i would think that they would need my phone to get the real conversation. In the event of a subpoena, do they only look at the relevent information?
Since you said you've deleted the messages, what good would it do to have your phone? And, again, how would you propose that someone distinguish what is relevant from what is irrelevant without looking at it?
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