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Electronic Discovery Institute Class 29: eDiscovery Challenges in Specific Practice Areas: Employmen

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on August 12, 2018. Go to to sign up for it.

The course entitled, eDiscovery Challenges in Specific Practice Areas: Employment, is taught by Paul Weiner, eDiscovery Counsel for Littler Mendelson; Ron Peppe, a vice president for legal and human resources at Canam Steel Corporation; and Aaron Crews, senior associate general counsel and global head of eDiscovery at Walmart.

Employment Law & eDiscovery Employment law cases may be large class action suits, or suits by individual employees. Discrimination and harassment suits are common. Suits regarding trade secrets are also common. Employment law cases make up 10-15% of the federal docket. Employment claims include those for wages or those concerning non-compete clauses. Private Attorney General Acts (PAGA) allow employees to recover civil fines on behalf of themselves and other employees. It's worth noting that the landmark electronic discovery Zubulake decisions were made in an employment law case.

Some companies require employers to wear fitness trackers which present unique electronic discovery challenges. Employees will often make use of their own electronic devices which also presents unusual problems for electronic discovery. eDiscovery is a two way street. The focus should not only be on the defendant companies. Plaintiff employees may also control large amounts of significant data and these individuals have the same discovery obligations. The Apple iPhone was not introduced at the time of the amendments to the Federal Rules of Civil Procedure in 2006. The use of social media sites like Facebook, Twitter, and YouTube has grown exponentially over the past decade. The number of text messages sent each day is equal to the total number of people on earth. The number of internet connected devices may reach 50 billion in 2020.

Statements and images posted to social media may contradict the contentions made in employment law suits.

Plaintiff's Perspective The plaintiffs in employment law suits tend to be in the position of asking for data and may not hold large amounts of the data themselves. The will be in the position of making asymmetrical requests. However employers may make requests to preserve and produce social media data. The plaintiffs usually anticipate litigation before their employers and hence will have an obligation to preserve data earlier.

Plaintiff's counsel cannot rely on their individual client's claims about data preservation. As data custodians they will have a vested interest in the outcome of the case. A lawyer's obligation to advise an individual about data preservation duties will be heightened with plaintiff employees.

Data Sources & Technology There has a been a proliferation of data sources devices in recent years. It may be difficult to identify the data that is actually at issue in a case. The data may be ephemeral and present preservation problems. The 2015 amendments to the Federal Rules of Civil Procedure addressed the importance of proportional discovery. Discovery may be limited according to the amount at issue in a case. Even in a case with a large amount in controversy, the potential value of certain evidence may be outweighed by the cost of producing it. Under FRCP 26(b) it may be burdensome to review and produce marginally relevant data.

"Bring Your Own Device"

Companies have implemented BYOD policies as way to save money, and also in response to employees' desire to use their own smartphones. BYOD policies mean that the individuals own the data saved on these devices. If the stakes are high enough, employees will be inclined to reject employer's request for the data on personal devices. Some employees try to control how their employees will use these devices and limit their access to company servers to specific time periods. Devices should be less frequently used as 'data containers' and more often as 'data portals'. Devices are becoming less likely to contain data not saved elsewhere.

Structured & Unstructured Data Queries can be run on structured data more easily than unstructured data. Sharepoint is an example of unstructured data. Time and attendance records, salary information, door scans tend to be saved as structured data.

Companies always have data in a variety of formats. It is not easy to run reports on data stored in proprietary systems.

Class Action Lawsuits

Class action suits tend to involve a large amount of data in different locations. It will take a lot of work to collect the data There may be thousands of individual plaintiffs. Rule 23 class action is a usually an opt out case - individual plaintiffs may affirmatively opt out. Other types of class actions may allow plaintiffs to opt in to the case. The first phase of a class action will determine whether or not the case is appropriate for a class action in the first place. The second phase will be merits related discovery and will only proceed if a court has first certified a class. Pre-certification discovery may be limited to certification related discovery. Merits related discovery may only proceed if the class is certified.

Under FRE 502(d) and FRE 502(e) a clawback agreement can be drafted to allow for the return of inadvertently produced privileged documents. Such an agreement may preclude the consideration of the adequacy of the review for the production and how long a party waited to request the return of the privileged data.

Large companies are required by federal and state law to protect the data of their employees. They will often engage in information security audits. Protective orders should include basic information security provisions. Most eDiscovery vendors have sophisticated information security measures.

The Scope of Discovery Requesting anything related to the employment of an individual may lead to a large data dump. Courts generally don't allow fishing expeditions, but they may give plaintiffs a lot of leeway in employment law cases.

The Future of Employment Law

Companies don't often think of the challenges involved in retrieving data from cloud storage for employment law cases. It may not be advisable to retain the data held by dismissed employees. There should be an increased emphasis on proportionality in determining what data needs to be preserved and produced.

Effective Policies, Best Practices & Conclusion

Information governance requires the implementation of a records retention policy. A data map should be maintained to help facilitate the preservation and production of data for litigation. Data should only be retained for so long unless a preservation obligation arises.

A data map must a constantly updated reference and account for how employees move data to different locations.

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