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Electronic Discovery in Workplace Litigation
Electronic Discovery is not stranger to workplace litigation such as discrimination and harassment. The most cited EDiscovery case ever, Zubulake v. UBS Warburg, started out as a "simple" discrimination suit. EDiscovery plays such a valuable role because most employees rely on computers for productivity, communications, and leisure. The combination of email, the most common form of corporate communication, and poor judgment, represents a valuable source of information for employees and employers alike. To increase the value of litigation, web surfing that some may consider "leisure" could be considered discriminatory or harassing to another. Leveraging computer forensics is beneficial to find hard evidence against the accused, but can also quite often be able to disprove allegations.
As you are aware, more than 40% of all information produced in EDiscovery is email. The reason for this is that people will say in an email message things that they never dream of stating in a letter, memo, face-to-face conversation or phone call. For example, employees are far less inhibited about making derogatory statements about their co-workers or their boss when conversing from computer screen to computer screen. Yet, the same comment would go unsaid if the discussion were on the phone. Indeed, research has revealed that the content of email messages tends to be more irresponsible than the content of face-to-face communications in that email may include profanity and negative sentiment whereas in-person conversations will not. The major issue with the lack of judgment is that emails are permanent. Once a user hits the "send" key, the email it etched in time. Someone else now has a copy that could be saved, printed, or forwarded to someone else, backup tapes will contain copies of the email, and deleting the email does little more than entertain you from a computer forensics perspective. Below are some examples of how dangerous emails can be:
· In 1995, Chevron Corporation paid female employees $2.2 million to settle a sexual harassment lawsuit. The main method used to create a hostile work environment? Email circulated by male employees containing topics such as "25 reasons why beer is better than women."
· The Microsoft antitrust trial further illustrates just how damaging email can be. If only Bill Gates could have taken back his corporate missive regarding "a clear plan to undermine Sun."
Sometimes emails discovered in litigation do not always favor the plaintiff. For example, a female employee of a company complains that she has been sexually harassed by one of her supervisors. A private computer forensics firm is hired to produce evidence related to the allegation. The firm was able to collect evidence in the case, including electronic mail messages between the employee and her supervisor indicating that the relationship between them was consensual. It was ultimately learned that the woman was not being harassed.
There is also valuable digital information outside of email. With the lines between work and home lives becoming blurred in our culture, many employees use the company computer and Internet connectivity for leisurely web surfing. Unfortunately for the employer, these websites could be pornographic, racist, sexist, or simply contain off color jokes. If someone walking by happens to disagree with the content on the computer screen, these activities could be grounds for litigation. It is also possible that evaluating someone Internet usage could simply build a stronger case to the accusations at hand. Computer forensics can be leveraged to recover web pages viewed, along with the times and dates they were viewed, to either support or disprove the accusations or simply to provide information to reveal more about someone's character. Computers may also contain appointments, contacts, and other information that may be relevant to the litigation at hand.
Electronic discovery has long been leveraged in employment litigation. Computer forensic experts are often able to find hard evidence against the accused. They are also quite often able to disprove allegations. If harassing e-mails have gone out and are discovered or proof of questionable Internet activities can be found, the information can make a case. Many people unwittingly believe the information they input into a computer is free from discovery. If it's deleted and destroyed, it's safe, they think. When a computer forensic expert steps into a case, however, the error of the assumption becomes clear. If a company or employee is trying to prove or dispute sexual harassment or discrimination, a computer forensic expert can fast become the most valuable person on the case.
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A Company Computer and Questions About Privacy
The New York Times published a case last week in which a company is involved with litigation with a former employee in which the company is being accused of violating the employees privacy by reading the employees personal YahooMail!. Here is the link to the story.
Here is a link in which a Court of Appeals ruled in favor of a police officer and others who claimed that the city of Ontario, Calif., violated their Fourth Amendment rights by reading personal text messages sent from company phones.
Lastly, here is an article entitled "Wipeout: The Dangers of Workplace Websurfing"
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Current Listing of States That Have Enacted Federal E-Discovery Rules
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The adoption of the updated Federal Rules of Civil Procedure continues to grow. Here is the most recent listing.
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EDiscovery Case Law
Adverse Inference Sanctions Granted Where Plaintiff Destroyed Computer Evidence
Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (D.Minn. Feb. 10, 2004). In a sexual harassment and whistleblower lawsuit, the defendants sought to recover the hard drive of plaintiff's personal computer because it allegedly contained an October 2001 document outlining the harassment. After a protracted discovery battle, the defendants sought a Motion to Compel and the judge ordered the plaintiff to furnish the defendant with a "copy of all documents/files relevant to this litigation that exist on Ms. Anderson's personal computer as well as those that have been deleted or otherwise adulterated." Pursuant to the judge's Order, the defendants' computer forensic expert examined the plaintiff's hard drive and discovered that a data wiping software application had been installed after the plaintiff had agreed not to "delete any existing documents" in a deposition. The computer forensic expert also found that the hard drive installed in the machine was manufactured in August 2002. The plaintiff claimed that she did not use the software program to destroy evidence, but that she used it routinely to protect her computer files. She also stated that in her view she owned the same computer throughout the litigation despite changing the hard drive in 2002. The defendants then moved to dismiss the complaint due to plaintiff's alleged discovery violations and destruction of evidence. The court noted that the plaintiff's "exceedingly tedious and disingenuous claim of naiveté! regarding her failure to produce the requested discovery defies the bounds of reason" but was not sufficiently egregious to warrant dismissal of the case. Instead, the court issued an adverse inference jury instruction because the plaintiff intentionally destroyed evidence and attempted to suppress the truth.
Court Issues Adverse Jury Instruction Where Plaintiff Disposed of Home Computer after Filing Discrimination Suit
Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007).
In a gender discrimination suit, the defendant brought a motion for sanctions against the plaintiff for spoliation of evidence, specifically seeking dismissal of the suit because the plaintiff disposed of her home computer after filing an EEOC claim against the defendant. The plaintiff's home computer contained evidence relating to her lawsuit against the defendant. The plaintiff claimed that she disposed of her computer after the hard drive crashed and was unable to be repaired by her brother. The court held that sanctions were appropriate since the computer contained evidence directly related to the plaintiff's claims and her efforts to mitigate her damages by finding another job after leaving defendant's company. The court determined that she disposed of the computer with a "culpable state of mind" and that an adverse inference jury instruction at trial was proper.
Court Orders Parties to Preserve Relevant or Potentially Relevant Computerized Data
Zhou v. Pittsburgh State University, 2003 WL 1905988 (D. Kan. Feb. 5, 2003). In an employment discrimination suit, the plaintiff sought to compel the defendant to produce computer generated documents (instead of typewritten documents compiled by hand already produced) reflecting the salaries of defendant's faculty. Relying on the Advisory Committee Notes to Fed.R.Civ.P. 34, the court stated, "[T]he disclosing party must take reasonable steps to ensure that it discloses any back-up copies of files or archival tapes that will provide information about any 'deleted' electronic data." The court granted the plaintiff's motion to compel and ordered the defendant to disclose all data compilations, computerized data and other electronically-recorded information reflecting the salaries of defendant's faculty. The court further ordered the parties to preserve evidence that they know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically-recorded information.
Court Sets out Protocol for Appointment of Computer Specialist
Coburn v. PN II, Inc., 2008 WL 879746 (D.Nev. Mar. 28, 2008).
In this gender discrimination claim, the defendants filed a motion to compel the plaintiff to provide supplemental answers to interrogatories and requests for the production of documents. Specifically, the defendants sought a forensic examination of the plaintiff's home computers, and the plaintiff opposed the request as potentially violating her privilege, privacy and confidentiality interests. Finding the burden of compliance to be minimal, the court set out a protocol for appointing a computer specialist to conduct the examination, whose cost was payable by the defendants. The protocol contemplated agreement of the parties, whereby access to protected information would not result in waiver of the attorney-client privilege. Additionally, the parties were ordered to agree to a time and date for collection whereby the plaintiff's attorney would maintain the sole copy of the mirror image of the computers.
In Floeter v. City of Orlando, 2007 U.S. Dist. LEXIS 9527 (M.D. Fla. 2007)
a sexual harassment case, the plaintiff sought sanctions against the defendant for spoliation because it removed the hard drive from a company computer, which, the plaintiff argued, contained key evidentiary documents. The court decided that for sanctions to apply: (1) the evidentiary documents must have existed at one time; (2) the defendant must have had a duty to preserve the documents; (3) the documents must have been crucial to the plaintiff's prima facie case of sexual harassment; and (4) the defendant must have had acted in bad faith in not producing the documents. The court ultimately denied sanctions because it found the defendant had removed the hard drive pursuant to its standard operating procedures and not to thwart the discovery of evidence.
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