E-discovery: Corporate defendants strike back

Tips on how in-house counsel can turn the tables during e-discovery

Because individual plaintiffs often have little electronic data of their own to preserve and produce, they are often able to use e-discovery requests as a weapon to make life miserable for the corporate defendant, who must search, gather, process, review and produce potentially onerous volumes of data. Some plaintiffs successfully count on the corporate defendant to settle these cases, regardless of the merits, because a cost-benefits analysis frequently yields the conclusion that settlement will be cheaper than the costs of responding to e-discovery requests alone.

To be sure, there are cases that should be settled based on this calculus. But there are others that should not and would not be settled if the corporate defendant was armed with the ability to turn the e-discovery tables on the plaintiff. Unfortunately, companies often overlook electronic data that the plaintiff may possess and may not wish to produce, and, in the process, the company foregoes leverage it could have brought to bear on the plaintiff. Although not every case is right for it, counsel should always consider what, if any, electronic information the individual plaintiff may possess, as most plaintiffs do not consider what skeletons they have in their own closets when they go hunting for them in the corporation’s closets. A real case example makes the point.

A corporation discovers what it believes is an employee using his work computer to access pornography during work hours. The employee’s supervisor and HR director confront him about his conduct, search and quarantine his computer, advise him that his access to pornographic websites has left cookies on his hard drive and, when he denies it, fire him for violating the company’s web-surfing policy. The employee then sues the corporation for defamation (as he is at-will and has no direct employment claim), alleging that the supervisor defamed him by asserting in the presence of the director that he surfed porn and the statement was therefore “published” to a third party, the HR director. The employee asks for seven-figure compensatory and punitive damages awards and demands broad-ranging discovery from the corporation, including all other employees who have been accused of violating the web-surfing policy and how the company has treated them (a not-so-subtle threat of a potential class action). He also accuses the corporation of spoliation of evidence for conducting searches on his computer without first imaging the hard drive, suggesting that the corporation may have planted evidence on the hard drive. The employee then demands a seven-figure settlement. What does the company do?

Many companies and their counsel begin and end their analysis by quantifying the cost of responding to the plaintiff’s e-discovery requests and then deciding that even a mid to high six-figure settlement is cost justified. And while that conclusion may be appropriate, consider the following alternative.

First, image the hard drive using appropriate protocols with the plaintiff’s agreement. Given the plaintiff’s spoliation allegations, he will be hard-pressed not to agree to a protocol-protected image of the hard drive. While the “damage”, if any, has been done by the employer’s pre-imaging searches, the company can show its good faith by immediately imaging the hard drive, making a copy available to the plaintiff and showing it has nothing to hide, thus likely preserving its ability to rebut the spoliation claim.

Second, ask yourself what e-discovery can the company request that the plaintiff produce that is relevant and will make the plaintiff think twice about his case? How about a protocol-restricted search of the plaintiff’s home computer or other electronic devices? If the plaintiff can be shown to surf porn outside of the office, does that not make it more likely than not that the cookies left on his work computer showing multiple examples of access to porn sites were left there by him? Isn’t that especially true if the employee’s work computer was password-protected, and he claims he never violated the company’s password policy. While not every judge will order the production of the employee’s home computer or other nonwork devices, in this case, there was more than a good-faith basis for the motion, and the court ordered its production subject to an appropriate protocol.

The result? The plaintiff violated the order by failing to produce his computer and missed the next several court appearances. Eventually, the court dismissed the case with prejudice for want of prosecution.

Contributing Author

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Joseph Fogel

Joseph L. Fogel is a Partner at Freeborn & Peters and co-leads the Litigation Practice Group. His areas of focus include multiple areas of business...

Additional Contributors: Todd Ohlms

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