The Yale Law Journal

Third Circuit Dissent Cites Vol. 128 Feature

Isabelle Hanna
15 Mar 2019

The Third Circuit in Scherer Design Group, LLC v. Ahead Engineering, LLC, No. 18-2835, 2019 WL 937176 (3d Cir. Feb. 25, 2019), considered whether the plaintiff employer’s access to a defendant employee’s Facebook account should have led the district court to refuse to grant a preliminary injunction under the unclean hands doctrine. The Third Circuit upheld the district court’s grant of the preliminary injunction because the alleged violation of the defendant’s privacy was not “directly related” to the plaintiff’s claim. Id. at *4. Judge Ambro, in his dissent, highlighted the highly intrusive nature of the employer’s alleged behavior. Id. at *9 (Ambro, J., dissenting). He cited a recent Yale Law Journal Feature to remark that accessing private communications is intrinsically harmful, regardless of whether the employer used the information obtained. Id. at *9 n.6. That Feature, GINA, Big Data, and the Future of Employee Privacy by Professors Bradley A. Areheart and Jessica L. Roberts, argues that GINA—a law initially designed to prevent genetic discrimination—provides a framework for future statutes protecting employees’ privacy in the era of big data.