Electronic discovery promises to be a real brier patch for employers. It has already sprouted several blawgs dedicated to e-discovery topics. There are some good resources on eDiscovery Source, Electronic Discovery Law, and Sound Evidence: E-Discovery Simplified.
I have traded a series of posts and comments with fellow lawyer and blogger Rush Nigut at Rush on Business. We have both exposed the merits of a thoughtfully developed record retention policy. We have begun to explore the "what ifs" in the context of business litigation.
Employment discrimination cases will undoubtedly have a component of electronic discovery in terms of e-mails between the "key players". When an employer has a threatened claim, it has an obligation to preserve electronic and other evidence even before a lawsuit is filed. Intentional or inadvertent destruction of this evidence can result in sanctions such as loss of the case, monetary sanctions or an adverse inference instruction to the jury. These sanctions can occur even if records were destroyed pursuant to a valid record retention policy.
For example, a recent court decision involving a common factual scenario highlights the issues involving record retention and destruction. In Floeter v. City of Orlando, a female employee filed an internal complaint of sexual harassment including allegations of pornographic e-mails. She later filed a lawsuit in which the pornographic e-mails were subpoenaed. Because of the application of a record retention policy, the employer could not produce or unequivocally state that the e-mails did not exist. After considering a variety of sanctions, the judge ruled that the jury might receive an "adverse inference" instruction which allows the employee to argue that the e-mails existed and the employer intentionally destroyed them.
The employer’s predicament was caused, in part, by its record retention policy including:
- Failure to put a hold on electronic records when litigation was possible, i.e., the filing of an internal complaint.
- Failure to preserve computer records when new computers are issued or employees leave and their computers are reassigned.
- Routine erasure of back up tapes pursuant to policy.
When and employer has a threatened legal claim there are several things it should not do as demonstrated by excerpts from these real cases:
- Don’t send out an e-mail reminding the IT department and employees of the company’s heretofore unenforced record retention policy. Arthur Anderson took this tact and ended up in the United States Supreme Court arguing about overturning criminal convictions.
- Don’t adopt a record retention policy and schedule a Shredder Day
- Don’t purchase and run software called the Evidence Eliminator