At the most recent national conference of the National Employment Lawyers Association, a hot topic was obtaining electronic evidence from employers in employment cases. Employees need to know that their employer is also likely to seek electronic data from them.
Your Cell Phone Knows Everything
Almost every detail of a person's life is likely to be somehow documented on their electronic devices — personal computers, cell phones, and web accounts, for a start. This is even more true of large organizations such as corporations or the government. In employment litigation, most of the information relevant to the case is likely to be in the possession of the employer, and today most of that information is likely to be in electronic form.
Obtaining Information through Discovery
Discovery is the process of obtaining information relevant to the lawsuit from the other side, and both plaintiffs and defendants in lawsuits have equal rights to conduct it. One of the key elements of discovery is requests for documents, which include electronic documents — emails, text messages, Word files, databases, in short, virtually any kind of document paper or electronic. Obtaining information relevant to a lawsuit can be a daunting challege, however, often akin to searching for the proverbial needle in the proverbial haystack.
Electronic information is also fragile; it can be deleted with the touch of a button. Damaged or deleted information can be difficult — although often not impossible — to recover. However, even when the data cannot be recovered, it is often possible to detect when information has been deleted.
Your Duty to Preserve Relevant Information
The moment you contemplate bringing a lawsuit, you have a legal and ethical duty to preserve any relevant evidence in you possession — which includes electronic information. When you consult an attorney, you should expect your attorney to ask for electronic copies of your email, computer hard drive, cell phone (or at least text messages), and social media accounts. In the meantime, you must be careful not to erase, alter, or delete relevant information. If you do, a court is likely to hold you accountable for "spoliation" of evidence. While some relevant evidence could be embarrassing or even damaging to your case, the consequences of destroying or withholding evidence are likely to be far more severe, and in court you may not only lose the case but also be subject to having to pay the other side money in the form of sanctions.
For employees who may be contemplating filing a lawsuit, or even just people who are interested in more information about obtaining electronic information, potential resources include the blog Ball in your Court and the Sedona Conference.