Ivo Becica ()
I know what you’re thinking: Not another article about e-discovery requirements. Much ink has been spilled about the potential penalties when organizations and their counsel fail to take affirmative steps to preserve electronic evidence. Indeed, the focus on penalties is justified, since sanctions for spoliation of electronic records can include adverse inference jury instructions; monetary sanctions; suppression of evidence; contempt; and the striking of claims or defenses.
Fortunately, e-discovery isn’t just about avoiding sanctions. Good e-discovery practices can also help litigants build stronger cases for trial or settlement. This is particularly true when it comes to traditional employment law claims, such as discrimination, hostile work environment, wrongful termination and retaliation. Because employment claims are so fact-intensive, and the modern workplace is increasingly reliant on technology, the importance of e-discovery in employment litigation cannot be understated. This article focuses on the potential uses of e-discovery in traditional employment claims, and identifies some best practices for managing e-discovery proactively.
While each case is different, e-discovery can be particularly useful for the following purposes in employment matters:
• Establishing a timeline. In discrimination and retaliation cases, the factual timeline can be a key factor in determining whether the employer can prevail on a motion for summary judgment, as in Turner v. Resort Condominiums International, 2006 U.S. Dist. Lexis 48561, *10-12 (S.D. Ind. 2006), in which the court granted summary judgment where the employer was able to produce at least nine emails showing that the plaintiff was added to the reduction-in-force list before she informed anyone at the company that she was pregnant.
• Strengthening legitimate business reasons or establishing pretext. In wrongful-termination cases, electronic records showing the claimant’s performance deficiencies, such as performance evaluations, counseling and written warnings, can make it more difficult for the claimant to show that the employer’s legitimate business reasons for termination are pretextual. On the other hand, if emails and other records show that the employer’s legitimate business reasons are weak, inconsistent or contradictory, the claimant may be able to create a strong circumstantial case.
• Preparing and impeaching witnesses. Particularly in older claims, the employer’s witnesses may be unable to remember key details about the claimant’s allegations, work performance issues and other relevant topics. Defense counsel can use electronic documents to prepare these witnesses for deposition or trial. A claimant’s counsel can also use electronic documents to confront and impeach witnesses who attempt to minimize their knowledge of relevant facts or deny their involvement in employment decisions.
Upon receiving notice of a filed or potential claim, both parties must identify and preserve relevant electronic evidence. per Zubulake v. UBS Warburg, 220 FRD 212, 216 (S.D.N.Y. 2003), in which the court held that “the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” The claimant’s duty to preserve evidence often arises earlier, because the claimant usually anticipates litigation first.
The employer’s preservation duties are typically more complex because of the volume of potentially relevant data. For this reason, in order to properly preserve electronic evidence, it is not enough to simply send a standard litigation hold memo to the employer’s IT department and upper management. The employer and its counsel should determine early on where potentially relevant data is located and ensure that all automatic deletion protocols or other processes that could result in deletion or loss of relevant data are suspended. If there is a large volume of relevant data, or if the data will be difficult to access, search or produce and use during litigation, the employer should consider retaining an e-discovery consultant or expert.
While the specific records to be preserved will vary depending on the circumstances of the particular case, employers should consider the following potential sources of relevant electronic information:
• The user file from a claimant’s hard drive or network drive (including documents, desktop, favorites, application data and Internet browsing history).
• Emails, meeting notices, instant messages and text messages to and from the claimant, witnesses, supervisors and relevant decision-makers.
• Human resources software and databases.
• Accounting, payroll and time and attendance records.
• Employee training materials and records of trainings received.
• Policies, handbooks and other information made available on the employer’s intranet site.
• Proprietary or specialized software used by employees in the claimant’s job title.
Review and Voluntary Production
In the event of litigation, counsel should identify which electronic records in their client’s possession will be most relevant to the disputed issues. Whenever possible, this process should be done early on in the discovery period, prior to receiving any discovery demands, so that counsel can consider the impact of any problematic records on the value of the case and produce helpful records for use during discovery and depositions.
Before producing e-discovery, each party must determine the appropriate production format. Typically, litigants will need to choose between a native-format document production, in which records are turned over in their original file format (for example, .docx for Microsoft Word files) or a secondary electronic format such as TIFF or PDF. Native-format productions are typically less expensive and easier to manage initially, and will preserve the hidden metadata attached to files that cannot be viewed on paper or in a PDF. Metadata may be helpful because it can reveal when a particular document was created, who created it and when it was last modified. As an example, in Sherrod v. AIG Healthcare Management Services, 2000 U.S. Dist. LEXIS 1626 (N.D. Tex. Feb. 4, 2000), the court granted summary judgment where computer date stamps showed that the plaintiff downloaded or opened pornographic pictures during work hours.
If metadata is not necessary (for example, email productions where the dates, author and recipient are already shown in the text of the emails), TIFF or PDF document productions may be preferable, because each electronic document can be Bates labeled and organized much like a traditional paper production. TIFF and PDF files are usually searchable, which can save valuable review time.
Request E-discovery from the Opposing Party
Because of the volume of potentially relevant electronic records in the employer’s possession, the claimant should serve e-discovery requests on the employer’s counsel early on during discovery. The listing under “Preservation” can be used as a sample request for the claimant.
Defense counsel should also consider serving the claimant with a request to produce the following records in electronic format:
• Electronic calendars, journals or diary entries created by the claimant relevant to his or her allegations, along with associated metadata showing when they were created or last edited. These types of requests can be particularly useful in hostile work environment claims, where the existence or absence of contemporaneous documentation can impact the claimant’s credibility.
• Relevant emails and text messages to or from the claimant’s personal email or mobile phone.
• Electronic versions of any documents produced by the claimant in paper form, including associated metadata.
• In wrongful-termination cases, electronic records relevant to the claimant’s duty to mitigate damages, such as resumes, cover letters, emails and other records from online job search websites.
• In cases involving claims of emotional distress, the claimant’s profiles, postings and communications on social media websites that “reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state,” as in U.S. Equal Employment Opportunity Commission v. Simply Storage Management, 270 F.R.D. 430, 436 (S.D. Ind. 2010).
• Any videos, photographs or audio recordings made by the claimant relevant to his or her claims. When available, these types of records often provide a preview of the credibility of the claimant and key witnesses.
While managing e-discovery can be a challenge, organizations and attorneys that take a proactive approach to e-discovery will be rewarded with better litigation outcomes, particularly when it comes to employment claims. Viewing e-discovery as an opportunity to litigate smarter will also help both parties reduce the risk of sanctions and penalties.
Ivo Becica is an attorney in the labor relations and employment law department of Obermayer Rebmann Maxwell & Hippel. His primary area of practice is the defense of employers in employment-related claims before administrative agencies and state and federal courts in both New Jersey and Pennsylvania, including e-discovery issues if they arise. •