In employment lawsuits, preserving, finding, and utilizing electronic evidence can mean the difference between winning, winning big, or losing on summary judgment. Electronic discovery (“e-discovery”) is an important source of critical evidence that can help you establish proof of discrimination, retaliation, and pretext. Because such evidence can be digitally buried in complex servers and information systems, it is important that your employment law attorney be as sophisticated as possible during the discovery phase of your employment lawsuit.
Does your attorney know all the places your employer stores email and other potentially relevant data? Does your employer’s attorney? At the onset of litigation, the answer to the first question is a definitive no. And it may surprise you that the answer to the second question is often the same.
Even moderate-sized employers have complex information environments that splay their data across a multitude of data sources. A quick example regarding email:.
Business A has unique email in all the following places: “live” email mailboxes, individual computers, network drives, flash drives, external hard drives, employees’ home computers, and company back-up systems. Assume Business A does not have a particularly active litigation profile. What are the chances its lawyers are aware of all these pockets of email? What are the chances it will preserve and ultimately produce all the data relevant to your employment law dispute? If your smoking gun is on one of the tertiary email sources, what are the chances you or your attorney will ever see it?
Email is but one of many data types for which we can paint this scenario. So how does your attorney go about protecting your interests and holding your employer to their requisite level of discovery diligence? The answer lies in effective discovery requests, educated deposition preparation and, most of all, use of what is known as “26(f) Conferences” and “30(b)(6) depositions” (and their state law equivalents).
Let’s first address the 26(f) “meet and confer” process. Well in advance of the actual meet and confer, your attorney should provide your employer with your list of meet and confer talking points—sophisticated and intelligent questions regarding their information systems, e-discovery practices, and record retention policies. This will put your attorney in a position of strength. They will become well educated about potential data sources and/or be in a position to accurately prove that your employer is being uncooperative or balky in the discovery process.
Your attorney should then leverage and follow up on information gleaned from the meet and confer (and subsequent dialogue) to have a pointed 30(b)(6) deposition with your employer’s e-discovery/legal hold representative, IT representative, record retention representative, or some combination thereof. Your attorney will ask your employer’s representatives questions to determine whether all preservation steps identified via the meet and confer dialogue were put in place for your particular case. They’ll determine whether additional sources of data (e.g. email) other than those identified in the meet and confer dialogue exist. They’ll ask your employer to explain how its record retention policies are enforced (i.e. proof that record retention practices match record retention policies). Your attorney can use this information to identify new data sources and identify areas where your employer may not have lived up to its e-discovery obligations.
Ideally, this pattern of practice leaves your attorney adequately educated about all potential data sources and assures the preservation of all data that is relevant to your lawsuit against your employer. If the results fall short of that, you’re still in a position of strength: You’ll have a documented history of your employer’s lack of discovery diligence and/or cooperation, which your employer can then use to garner inferences from the Court in your favor.
Presuming this practice provides your attorney with an adequate education on your employer’s information systems and e-discovery practices, you’ll be in position to craft specific discovery requests that cannot credibly be thwarted by boilerplate objections. Additionally, in individual witness depositions, your attorney can ask specific questions to ensure adequate preservation measures were implemented.
This pattern of practice not only provides maximum assurance that all data relevant to your employment law dispute will be identified, preserved and produced, but it also quickly make your employer’s attorneys aware that they are dealing with a sophisticated and aggressive adversary, one that will make sure they fully comply with their e-discovery obligations. This will affect their settlement calculations and benefit your overall case resolution.
A quick note regarding social media: employers are becoming increasingly sophisticated regarding the value of employee’s social media content. At the outset of any employment law case, your attorney should instruct you to not discuss your case or its circumstance on any social media site. Of equal importance, you should be instructed that you must preserve any relevant data you have to date posted on social media sites. There have been a number of recent cases where employers and/or employees have been sanctioned for not preserving social media content.
Sean Dunn, J.D., is a founding partner and the primary consultant at Orrery Consulting, which provides e-discovery consulting services to businesses and litigators. Mr. Dunn has 16 years of experience in e-discovery, previously serving as Technology Consultant at Medtronic in Arden Hills, Minnesota from January 1997 to July 2012.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.