Written by: Adam C. Losey and Scott Callen
Employment litigation can be expensive and time-consuming, especially due to the increased importance of and focus on ediscovery (the grab-bag of legal and logistical issues associated with the management, identification, preservation, collection, search, review, and production of electronically stored information). Below are five quick tips for efficiently and effectively handling ediscovery in employment cases:Continue reading this entry
The privilege implications of employees e-mailing their attorneys from an employer’s computer have been addressed by a number of courts. (See also Foley’s Employment Law Update for the Week of July 13, 2010). In one of the first reported decisions on this issue, a bankruptcy court addressed the application of the attorney-client privilege to an employee who uses a corporate network to communicate with his personal attorney. (See In re Asia Global Crossing, Ltd.). New York has a specific statute on the issue. N.Y. C.P.L.R. § 4548.
Increasingly, the discovery of electronic documents and communications is rapidly driving up the costs of employment litigation. Furthermore, the continued misperception that e-mail is somehow personal and private can create many and varied liabilities for companies as well as have a dramatic impact on the outcome of litigation.
On October 21, 2010, Mark Neuberger and Jack Lord will address the topic of e-mail in litigation. This program will explore the proactive steps companies can and should take to ensure that e-mail and other electronic media enhance rather than detract from your firm’s legal posture.
To register for our Web conference on Thursday, October 21st at 11:30 CT, visit our Registration Page.
Everything you say, post, IM, tweet, or text may be used against you, or your employee.
Social media evidence has changed the landscape of discovery in employment law cases. If an employer suspects an employee is lying, engaging in FMLA abuse, or hunting for a new job, the admission might be in cyberspace. With more than 500 million users on Facebook alone, chances are that the employee has a social media account. Whether Facebook, Twitter, MySpace, LinkedIn, or plain old texting, social media users are uninhibited when it comes to broadcasting their thoughts, pictures, and videos to the world. Those broadcasts can get the unscrupulous worker in big trouble.
The evidence comes with dates, time stamps, and even embedded information that users may not even know about. For example, many cell phone cameras now digitally stamp each photo taken with precise geographical data (“geotagging”). As discussed at a UC Davis Panel, this content is being used as evidence, and the evidence lasts virtually forever.
According to a discovery order in EEOC v. Simply Storage Mgmt., LLC, even if the account is “private,” the information on a litigant’s social media Web sites can be used in a lawsuit.
Simply Storage, a sexual harassment case, included a claim for severe emotional distress. The judge reasoned that social media, whether written text or pictures, might reveal information about the emotional state of the claimants. Therefore, the judge allowed discovery of social media content that revealed “emotions.” The allowable discovery was not limited to content that directly mentioned emotions, but also included communication that referred or related to events that normally “produce a significant emotion, feeling or mental state.” Specifically, that includes relevant “verbal communications” (wall posts, status update, comments, groups or causes joined, activity streams, and blog entries), third-party communication, photos, and videos. To preserve the privacy of the parties, the court issued a protective order limiting the disclosure of the information only to those involved in the lawsuit.
Social media is now used as evidence in all areas of law. People have posted pictures resulting in gun possession charges, updated statuses confirming drug use, and tweeted their way to divorce. The door to this new area of discovery is open, and employers can take advantage of it.
You walk into your office, check your inbox, and notice an e-mail referring in the subject line to “Jane Doe,” an employee who was terminated six months ago. The attached letter is from Attorney Jones who represents Jane Doe and is investigating discrimination and retaliation claims. The lawyer demands that all potential evidence relating to Jane Doe, whether paper or electronic and including any e-mail sent or received by Jane Doe, be preserved along with backup tapes.
Now what do you do? Jane Doe was terminated six months ago. You have no idea what happened with her inbox, who worked with her over her five years with the company, and are not sure how long the company archived e-mail or other electronic records.
The answer is that you must figure out all these issues and look into other important questions because the company is now on notice that it has information relevant to a potential lawsuit and is obligated to preserve it. There are not many hard and fast rules in such a situation, but here are some important, immediate steps to take if you receive a similar letter.
There is no doubt that this process can be time consuming and potentially expensive, particularly in discovery. It is crucial to remember, though, that the obligation to preserve this information arises when you receive notice of a possible claim, not only when a lawsuit is filed or discovery requests are received. If appropriate steps are taken only when the lawsuit is filed, it may already be too late and the company will be at risk if potentially relevant information was not preserved. For example, see “New E-Discovery Decision Imposes Sanctions, Highlights Risks” .
Our advice is to consult with your counsel immediately about appropriate steps to be taken, coordinate with your IT staff, and take prompt steps to preserve written and electronic documents.