Mark Pestronk
Q: The CEO of one of my agency's largest clients is going through a divorce. The CEO's spouse has requested copies of his "travel records" as well as those of his usual traveling companion. I have a bunch of questions about this request. Who owns a client's so-called travel records, which in our case would be nothing more than data stored in our back-office system from where we could produce management reports showing just tickets issued and hotel and car reservations made? Do we have to tell the CEO before we comply with his spouse's request? If the CEO objects to our release of that data, do we have to do what he wants? If the spouse's attorney subpoenas the data, do we have to give it out? If we don't want to do so, do we have any legal grounds for withholding it?
A: Data belongs to the owner of the computer in which it is stored. So if your back-office data is in your agency's computer, you own it. If the data is in your reporting system vendor's system and you have the right to download it into yours, you own what you download.
Corporate clients sometimes believe that their companies own the data, and their outside consultants reinforce that position. Leisure clients might take that position, too. However, the clients and consultants are wrong.
If someone requests data, it is up to you to decide whether to provide it, unless a contract with a corporate client prohibits you from doing so. In the absence of such a contract, you are not legally required to consult the CEO or obtain his consent.
Furthermore, even if you consult the CEO and he objects, you are free to provide any data that you want to anyone. Unlike health care, bank and video rental records, there is no law protecting an individual's or a company's travel data against disclosure.
Of course, ethically and as a matter of good business, you will no doubt want to get the CEO's consent before releasing his and his companion's data to the spouse.
The situation changes if you receive a subpoena for the data, which is what the spouse's lawyer will probably send if you don't cooperate.
Court rules may require an attorney issuing a subpoena to send a courtesy copy to the other side in the case.
If the CEO's attorney gets a courtesy copy, you can expect the CEO or his attorney to ask you not to comply with it. However, if the subpoena is valid under the court system where the case is filed, you must comply.
The CEO's attorney may file a motion asking the court to quash (i.e., invalidate) the subpoena, in which case you should wait until the judge rules on the motion.
You can also object to the subpoena on your own behalf. Grounds for objecting include "undue burden" (i.e., excessive time, effort or hardship required to respond to the subpoena).
Of course, producing a back-office report for a client is fairly easy these days, so it is hard to see how you could claim that compliance with the subpoena would be an undue burden on you.
If you have qualms about complying, you should consult a knowledgeable litigation attorney in your state, who may be able to assert other grounds for quashing the subpoena.