Electronic Discovery in Employment Cases: What Every Employer Needs to Know Presented By: Shannon Cohorst Johnson
Understand e-discovery and the latest tactics by claimants and counsel Understand your responsibilities as an employer Learn potential consequences and ways to use e-discovery to HELP your case!
E-DISCOVERY BASICS: E-Discovery means the electronically-stored documents and other information that you may need to produce in a dispute. ESI: Electronically Stored Information Native Documents: the format in which the original document or information was created (i.e. Microsoft Word, Excel, etc.)
HOW IS E-DISCOVERY UNIQUE IN EMPLOYMENT CASES? The difficulty in pinpointing when you should start the litigation hold process The unequal balance of discoverable information The continuous generation of evidence
RECENT TRENDS Understanding e-discovery REALLY understanding it will help protect an organization against a plaintiff s use of electronic discovery to obtain tactical advantages that have nothing to do with the actual merits of your case. Recent trend: Using metadata on native documents (or an employer s failure to retain/preserve the metadata) Is this really a new trend?
HOW YOU SEE YOUR LEGITIMATE EFFORTS TO RETAIN DOCUMENTS AND INFORMATION:
WHAT PLAINTIFF TELLS THE JURY YOU DID:
HOW CAN YOU PROTECT YOURSELF FROM THESE FALSE ALLEGATIONS? Be Proactive!
WHAT DOES THE LAW SAY? Missouri Courts: Spoliation is the intentional act of destruction or significant alteration of evidence. The destructive act must be intentional; mere negligent destruction of evidence does not constitute spoliation. The spoliator must destroy or alter the evidence under circumstances indicating fraud, deceit, or bad faith. It must be shown that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.
WHAT DOES THE LAW SAY? Federal Courts: Amendments in 2006 were intended to address changing business landscape. Mandates litigants focus at the pre-trial stages of a lawsuit on the distinct issues raised by the storage of discoverable information in electronic form, including: Steps taken to preserve ESI and How ESI will be handled/produced in the litigation.
Federal Safe Harbor Provisions Absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
WHAT ARE YOUR RESPONSIBILITIES AS AN EMPLOYER? Take your preservation obligations seriously and make sure your employees do, too.
THE RULE: Once a party reasonably anticipates litigation, it must suspend its routine document/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. BUT What does it mean to reasonably anticipate litigation?
REASONABLE ANTICIPATION OF LITIGATION According to the law, a reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation. Remember: There are times a Court will hold litigation should have been reasonably anticipated long before a judicial complaint or administrative charge was filed. This is subjective: not every job complaint or termination means an employee is likely to bring suit.
Once you know you have a reasonable anticipation of future litigation, what s next? IDENTIFY LOCATE MAINTAIN MONITOR
IDENTIFY relevant custodians and inform them of their duties to hold information Interview potential custodians Interview and coordinate with IT Make sure lower-level supervisors are aware of the possible need to preserve electronic evidence at all stages of an employment dispute.
LOCATE the documents and other ESI that should be maintained Ask yourself What do we need to preserve? Then ask, Where is it? And then, How can I make sure it s not lost? Remember, you might store things in multiple locations! Determine whether multiple versions of the same document exist in different formats, and talk to counsel about whether and to what extent you need to preserve one, the other, or both.
There are some categories of information that you might not always think about, but should be retained if relevant: Text messages from the employee to a supervisor Voicemails Instant messages Internet messaging and communications Internet history Calendar invites/outlook calendar Social media messages Recorded calls Video
Consider the following locations for documents: User file from a claimant s hard drive or network drive User files from supervisor(s) hard drive or network drive User files from other employee(s) hard drive or network drive (to the extent relevant to any claims) HR software and databases Accounting, payroll and other time and attendance records Employee training materials and records of training received Policies, handbooks, and other procedure manuals made available on your intranet Any specialized software used by other employees in the same job position
MAINTAIN the ESI Identified Provide instructions to custodians for preserving information. Consider search terms! Technology can make your job easier. Make sure ESI is not altered or inadvertently purged by automated systems/data administration or routine housekeeping. Coordinate with your in-house or outside counsel about what systems and data points are or are not held/suspended. If you have an outside IT vendor that does all or part of your IT work, inform them of the legal hold.
MONITOR COMPLIANCE Monitor compliance, and keep an audit trail document the steps you are taking to preserve as time goes on. If you are using search terms, make sure you keep a list of those terms and assess those terms from time to time as the litigation progresses, in case something should be changed or added. Release the hold when appropriate and consult with your legal counsel to ensure you don t do it too soon.
SPECIAL CONSIDERATION: CONTINUOUS GENERATION OF EVIDENCE When does the continuous generation of evidence arise? Key Steps: Identify key players, and note when key players change. Issue reminders. Reassess as the litigation progresses. Make it easy to preserve.
OTHER CONSIDERATIONS: New employees Key employee or supervisor departure Routine repairs or replacement of systems/servers Computer or server crashes
FAILURE TO PRESERVE ESI Planning is KEY: Failure to timely put a litigation hold in place can lead to future sanctions based on destruction of evidence. If ESI that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced, there are a number of steps the court can take and none of them will be good for your case.
THE CONSEQUENCES Upon finding prejudice, the Court may order measures no greater than necessary to cure the prejudice. If the party acted with intent to deprive another party of the information s use in the litigation, a federal court may: presume that the lost information was unfavorable to the party; instruct the jury that it may or must presume the information was unfavorable to the party; OR dismiss the action or enter a default judgment.
SANCTIONS Sanctions for destruction of ESI have included: Adverse jury instructions (*most typical in Missouri state courts) Monetary sanctions or attorneys fee awards Suppression of evidence Contempt orders against the employer or counsel The striking of claims or defenses.
DON T FORGET: ESI CAN ACTUALLY HELP YOUR CASE! Establishing a timeline. Proving your defenses Proving you haven t doctored documents after-the-fact Preparing defense witnesses Impeaching claimant s witnesses or the claimant
Shannon Cohorst Johnson Seigfreid Bingham, P.C. 2323 Grand Boulevard, Suite 1000 Kansas City, MO 64108 816.421.4460 sjohnson@sb-kc.com