To put it mildly, Electronic Discovery (“eDiscovery”) is a subject that has recently attracted a tremendous amount of consideration is both the corporate and legal sectors.  eDiscovery can be simply described as the procedure that occurs when a party to litigation asks for data from the opposing side that was generated, stored or preserved in an electronic configuration.  Electronically stored information (“ESI”) spans from email to text and database files to audio systems and beyond.  Surely, to enumerate all possible ESI formats would be quite exhaustive if not bordering on impossibility.

As it relates to employment proceedings eDiscovery is certainly not on the outside looking in.  Quite the contrary, it is well at home in this arena of the law.  In fact, the seminal eDiscovery case, the Zubulake case, revolved around workplace harassment and discrimination.  eDiscovery plays such a pivotal role in employment litigation perhaps since employee and employer alike depend so heavily on email and computer for communication and productivity.  Thus, effectively leveraging eDiscovery is frequently a sine qua non to pinpointing hard to find ESI in employment cases.  This is true no matter which side one is on, whether seeking evidence against the accused or attempting to invalidate the charges in the first place. 

Rule Number One: Think, Think, Think Before You “Send”

As noted above, the ESI most prevalent in employment proceedings is email.  More than half of all ESI data that gets produced in eDiscovery is somehow connected to an email, and this makes perfect sense.  Both employee and employer alike are considerably more relaxed when using email and will communicate thoughts that would never have been transmitted in person or even by telephone.  When contrasted against other modes of communication it is clear that email has evolved into the workplace medium most likely to produce harmful and damaging comments about superiors and colleagues. 

Nonetheless, once the send button has been selected there is no going back.  A copy of the email will forevermore belong to someone else and can be relevant for future discovery. What can happen to it next?  That copy can be printed, forwarded or saved.  In essence, it becomes fixed in time and deleting it at this point will do no good. One should not erroneously believe that once an email has been deleted, damaged or destroyed that they are out of the woods unable to be tracked and monitored.

Once email and other electronic records are created, eDiscovery may enter employment litigation in full force. Forensic personnel and Electronic Discovery consultants are frequently able to locate the electronic evidence to prove or disavow the charges.  When gathered if the e-data is unflattering – signs of discrimination, harassment or other illegality is shown – then the data can make, or break, a case.  Taking steps to ensure a throughout and seamless electronic data collection will quickly become urgently critical to the fledgling employment case.

Ooops, What If I Already Sent That Email?

Now is the time to gather your troops.

Whether initiating or responding to employment litigation one should assemble a diverse, inter-disciplinary team.  The following team members should be consulted both prior to litigation to lay out strategy and, once litigation hits, to respond in kind.

·        Records Member. This individual will aid the legal team with any physical, hard copy, records stored outside and within the business. The records member should then ensure that all relevant data is properly preserved and stored in a secure location. 

·        Compliance / Audit Professional. This person assists with assessing which individuals and what data was involved in the case at hand as related to the information risk management procedures that were, or should have been, crafted by them.  If no policy exists their presence here will be to learn what to insert into future protocols to help minimize costly litigation down the road in the future.

·        Counsel. This person will assess the legality of the employment issues at hand during discovery and the entire litigation.  The attorney, whether in house or outside counsel, should have in-depth knowledge of the key facts being contested as well as all probable counterclaims, defenses and any possible litigation emanating from a third party.  With this knowledge in tow, counsel must then draft a thorough and enforceable litigation hold notice to be sent to the parties above.

·        IT Constituent. This member must be able to pinpoint, gather and safeguard all pieces of ESI as requested by counsel.  After all pertinent ESI has been accounted for this person will need to properly protect it over time. The IT member should carefully identify all data that might be relevant for the case at hand by focusing on all accessible ESI first and foremost. 

Once assembled, the team will allow a business to take concrete steps needed to weigh the necessity to preserve data, deal with the shortcomings of any ESI data systems and reduce any interruption to ongoing business operations.

Next Time, Head This Off At-The-Pass (With A Thorough Data-Retention Policy)

As one may have heard, abuse of the discovery process as it relates to ESI may yield a plethora of sanctions. These sanctions may be invoked, among other reasons, if a party does not comply with a good faith, reasonable data-retention policy.  Furthermore, when data is damaged or destroyed in accordance with an established data retention policy that alone can be considered as adequate proof of one’s good faith.  Suffice is to say, having a proper data retention plan in place can spare costly litigation, employment-related or not.

When drafting the data retention policy keep in mind all relevant regulatory and legal requisites regarding the relevant time period to preserve the ESI and what type of data is being retained by the company.  Have it tackle email well – since, it bears repeating that, most employment-based eDiscovery revolves around email – and resolve how long email should be preserved, where emails should be kept and what email policies, if any, should be distributed to employees.  Random email surveillance may be included as well.  Normally, liaising with financial personnel, IT, company employees and legal counsel will be required.  Once created, it goes without saying; the data retention policy must not only be implemented but properly monitored.

In employment matters, the universe of possible sanctions for improper destruction of pertinent data pursuant to a faulty, or non-existent, data retention policy is quite broad. In instances of egregious behavior the punishment may be devastating. A fact finder may reward attorneys' fees and other costs connected with associated motions as a sanction. Courts also may also assume that the party that destroyed or damages the ESI in question did so because it was harmful to their position.  This adverse inference usually goes hand in hand with bad faith.

The aforementioned non-withstanding, the data retention policy created does not necessarily mandate the total security of all ESI at any and all costs.  Courts when dealing with employment litigation have made it abundantly clear that both parties must only take

 reasonable steps within their data retention policies to maintain ESI for trial.  This is equally applicable whether the litigation is reasonably anticipated or actually pending.  As a result, a well constructed data retention policy is essential to guaranteeing that one can comply with any preservation and production regulations and, at the same time, minimize the loss of ESI when faced with probable litigation by ensuring that all pertinent data is properly preserved.

What Else Can I Do To Protect My Company?

As seen above, manipulating or damaging evidence can be costly.  There are numerous court decisions in the realm of employment litigation that highlight the reality that all team members must collaborate together, early on and throughout.  This synergy will allow the business to bypass crippling sanctions for abusing the discovery process as it relates to ESI. 

Below are a few best practices to consider going forward:

• Look-out for any retaliation allegations. Retaliation claims account for many employment-based ESI decisions.  After any employee so much as even mentions harassment or discrimination, that typically will serve to put the company on notice of potential litigation and trigger its duty to preserve all relevant ESI. Documents that must be preserved include ESI relating to how the employee was treated after their claim occurred.
• Have an email training session. Many employees are unaware that their emails can be produced during discovery and can be used to harm the company during litigation. Even more personnel are likely under the impression that emails can be truly erased just by clicking on the “delete” button.  Address these issues with your team and emphasize how and when emails can be damaging when taken out of context.
• Backup data when terminating an employee. Most businesses will expunge an ex-employee’s hard drive so their replacement can use the computer. Before wiping any ESI accessed by the ex-employee first go ahead and backup that data if there is any sign the ex-employee might commence litigation.

Companies are constantly blamed for seemingly innocuous emails, and other ESI, that get them into hot water.  In parallel to the above best practices, implementing an effective intra-company ESI communication strategy, akin to the collaboration that should occur when crafting the data retention policy, is essential.  Specifically, human resources (likely first to know about potential litigation from former and current employees) and information technology (which will be charged with collecting and preserving pivotal ESI data) must be on the same page.  This will allow businesses to minimize employment-related litigation, particularly in light of the new and ever-evolving electronic discovery rules.

Conclusion

Now, take a step back.  Picture the plethora of emails that your team may be sending and receiving emails or other ESI on behalf of your firm or business while you are reading this very article.  Upon further reflection chances are you may not be at ease that every single employee's usage of those emails or confident that the content located within is completely acceptable.  Electronic discovery certainly impacts modern employment litigation front and center as your organization may be obligated to clarify or validate those very emails or other ESI in court.  Consequently, one must act proactively, as noted above, to help guarantee that the business or firm is not put in peril by a smoking gun email or other mismanaged pieces of electronically stored information.  Do not be left behind.

 This article was published in the Summer 2009 newsletter of the ABA’s Litigation Section, Employment and Labor Relations Committee