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.