Creating Employer Liability or Precluding Dismissal in Legal Actions

Often times, an employers’ actions or inactions before the retain counsel can either create employer liability or preclude dismissal of claims. Early intervention allows the employer to correct any violations, seek resolution, and if unsuccessful, position the employer to successfully defend the matter if legal action follows which is the best of both worlds.

Quicker, Less Costly Resolution Before the Employee Retains Counsel

The vast majority of the time, early guidance and counseling result in a quicker and less costly resolution for employers because the employee typically has not retained counsel. As soon as counsel is retained, settlement of claims can increase.

Putting the Entire Defense at Risk through Non-Compliant Preservation & Collection of Electronically Stored Information (ESI)

Evidence that supports or refutes employment-related allegations typically fall into two categories: testimonial evidence (oral testimony by a witness) and documentary evidence (handwritten paper documents and digital data). The information, in paper or electronic form, is considered “evidence.” As soon as the employer is on notice of anticipated litigation, employers’ legal hold and preservation obligations are triggered, requiring guidance by counsel in most cases.

Even when paper copies of ESI exist, at least one of the parties will demand production of the digital data, along with specified metadata (the historical and ownership information that properly authenticates the ESI). The metadata provides invaluable information to all parties in legal actions and must be produced when requested. The most common violations by employers who have not retained experienced counsel to direct legal hold and preservation include:

• Ignoring or not preserving potentially relevant ESI at the time the employers learn of potential legal action. Then, when the time e-discovery is initiated in a legal action, the employer attempts to collect the ESI, but learns that the potentially relevant ESI that should have properly been preserved now no longer exists at all or does not exist in its original native state. Either the ESI was intentionally or unintentionally altered, deleted, destroyed, or now has become inaccessible or otherwise compromised. Unfortunately, ignorance of the laws is no defense.
• Employer’s personnel touching the ESI by opening, copying, moving, altering or adding to the metadata such that it is no longer preserved in its original native state as required by law. For example, copying email boxes without using forensically defensible methods and even opening ESI documents; forwarding emails, texts or photos from an employee’s personal cell phone. Any change made by employees or personnel adds that user’s digital footprint to the original metadata, which means the user now becomes part of the chain of communication and a potential witness in the case.
• Custodians of potentially relevant ESI review their own ESI, cherry-pick what they believe is “relevant” information and then “transfers” the ESI themselves in a non-defensible manner (such as forwarding emails, transferring to clouds, storage, etc.) to the employer and/or counsel with no documentation of the chain of custody. Unfortunately, there is no second chance in collecting electronically stored information (ESI) evidence in a forensically defensible manner, so it must be done correctly initially. Experienced counsel will challenge the admissibility of all incorrectly-handled evidence and seek sanctions for non-compliance.