Labor: Examining employees’ ESI in employment litigation

Focusing on plaintiffs’ online postings could reveal contradictions.

In the employment law arena, it seems that the central focus in e-discovery has been on what electronically stored information (ESI) has been kept by defendant employers and the extent of their preservation efforts. After all, the leading e-discovery spoliation case—Zubulake v. UBS Warburg—was a gender discrimination case filed by an employee against her employer. But with the popularity of social media, email and text messaging, a defendant employer mired in litigation would be well served to seek discovery of a plaintiff employee’s own ESI. An employer just might find a treasure trove of helpful evidence that contradicts the plaintiff employee's claims.

Today, numerous workers regularly post surprisingly private information on their Facebook walls, record personal events and experiences instantaneously on their Twitter accounts, and communicate with co-workers using their iPhones, Blackberrys and other personal mobile devices through text messaging and personal email, such as Yahoo mail, Gmail, and the like. Many of these workers are not even aware that they are leaving an electronic trail of information that, from a defense perspective, may be very useful in an employment litigation case. 

For example, in a sexual harassment case where a plaintiff claims that she was personally offended by certain behavior in the workplace, she may have posted private information on her MySpace account that reveals otherwise. 

Additionally, in a disability discrimination case where a plaintiff claims that he has physical limitations due to an injury, that employee might have uploaded photographs into his Facebook profile showing images that call into question the employee’s claim of disability status.

In a trade secrets theft or restrictive covenants case, there may be incriminating information in an employee’s private email account—such as Hotmail—showing that the employee was emailing to himself highly confidential proprietary information just days before he departed from his employer and joined the competitor.

Also, in most employment litigation cases, the plaintiff employee generally claims that his or her employer's alleged discrimination, wrongful discharge or some other adverse action caused the employee to experience severe emotional distress or other mental anguish. However, the employee's own ESI may reveal information that contradicts the plaintiff's allegation of psychological injury. Moreover, even if the plaintiff does have a diagnosed mental condition, such as depression, the employee’s ESI may reveal that unrelated stressors (such as a divorce, tax problems or some other serious problem) caused the psychological injury.

But while much of a plaintiff’s ESI may be extremely helpful to an employer, defense counsel should utilize traditional means of discovery (document requests or subpoenas) to obtain the information if it is not publicly available on the Internet.  Indeed, bar associations are beginning to issue ethics opinions stating that a lawyer, either through himself or through the assistance of a third party, may not contact or “friend” an opponent or adverse witness on Facebook, MySpace or another social media site to obtain evidence useful for impeachment or other purposes. The rationale behind such restriction is that the lawyer is using deception and may be communicating with a represented party. But accessing the opponent’s public website on Facebook or another social media site is fair game so long as the information is freely available to anyone on the Internet.

With the endless ways that a plaintiff’s own ESI may benefit the employer in litigation, a company should make a plaintiff’s ESI “front and center” to the overall defense strategy. Indeed, defense counsel should pursue in discovery the plaintiff’s ESI from the very beginning of the case. In this regard, counsel should discuss at the Fed. R. Civ. P. 26(f) conference of the parties what ESI the plaintiff has in his or her possession and what preservation have been undertaken. In some cases, it may be appropriate to have imaged the plaintiff employee’s personal computer and mobile devices. Defendants should issue interrogatories and inquire during deposition regarding the extent and nature of the preservation efforts, if any, that were undertaken.  And, of course, companies should obtain the ESI through Fed. R. Civ. P. 34 document requests to the opponent employees and Fed. R. Civ. P. 45 subpoenas to non-parties.

Indeed, there is a growing body of case law recognizing that a plaintiff’s duty to preserve arises at an earlier point in time than that required of a defendant. As soon as a plaintiff makes the decision to file suit against his or her employer, he or she has a duty to preserve relevant ESI. If no preservation efforts have been taken and ESI has been lost, a court may impose sanctions for the spoliation, ranging from an adverse inference to dismissal of the case, depending on the severity of the spoliation and the lost evidence.

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