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Electronic Discovery and Spoliation in Employment Law Cases: An Update

Posted on May 23rd, 2016

Plaintiff ESI and Employer Electronic Data at Issue

Employment law cases, whether they are individual or class action lawsuits, will almost invariably involve eDiscovery. In some situations, employees’ computers, hard drives, flash drives and mobile devices may be requested for production and/or forensic imaging. Additionally, employees need to request a litigation hold for all relevant electronic evidence early against the former employer, as many companies have policies in place to delete data, including but not limited to email, on a regularly scheduled basis.

Therefore, ESI preservation and spoliation issues occur frequently in employment law cases. Here is an update of recent cases involving employment law and ESI:

Employment Law and ESI: Recent Cases

  • OrchestrateHR, Inc. et. al. v. Trombetta, et. al., Case No. 13-2110 (N.D. Texas, April 18, 2016), Plaintiffs (the employer) filed suit against Defendant Trombetta (former employee). Defendant admitted that he forwarded work emails to his personal account and deleted emails while he was still an employee. Plaintiffs sought spoliation sanctions against Trombetta. However, the deleted emails were still on the employer’s servers, and the emails Trombetta forwarded to his personal account were produced. The court found Trombetta’s actions did not rise to the requisite level of bad faith to impose an adverse inference instruction.
  • Brown Jordan International, Inc. et. al. v. Carmicle, Consolidated Case Nos. 14-60629 and 14-61415 (S.D. Fla., Mar. 2, 2016): Plaintiffs were the employers of Defendant employee engineer who, during this employment, wrote a letter accusing Plaintiffs’ agents and officers of fraud. Plaintiffs fired the employee, and Defendant remotely locked a company computer and refused to provide the information to unlock it. He also lost and/or deleted pertinent data despite the possibility of litigation. The court found a duty to preserve had arisen at the time of the spoliation and that he acted with intent to deprive Plaintiffs of the information. Based upon these determinations, the court ordered an adverse inference instruction against the employee be submitted to the jury.
  • Bazzi v. YP Advertising & Publishing, LLC, Case No. 15-10741 (E.D. Mich., Feb. 3, 2016): In this employment discrimination case, Plaintiff had downloaded documents during her employment from Defendant employer’s computer onto a USB drive. Plaintiff was willing to allow Defendant to copy the documents from the drive, but objected to submitting the USB drive for forensic imaging. Defendant sought forensic imaging in order to preserve the metadata on the drive. The magistrate judge ordered the USB produced, reasoning that the metadata may lead to evidence relevant to issues in the case. The district court judge affirmed the lower court’s order for production and imaging of the USB drive.
  • Evans v. Quintiles Transnational Corp., Case No. 13-00987 (D. S.C., Dec. 23, 2015): In this wrongful termination and retaliation case, Plaintiff sued Defendant for allegedly firing her in retaliation for threatening to report her supervisor over an argument. Prior to trial, Plaintiff sought an adverse inference instruction with respect to a computer file Defendant failed to produce that documented the supervisor’s alleged wrongdoing. Plaintiff claimed that she notified the HR department that her computer contained notes supporting her claim and that Defendant thereafter cut off her access to the computer. Plaintiff’s counsel sent Defendant a letter alleging damages, but without a litigation hold demand and with no mention of the computer notes. Defendant confiscated Plaintiff’s work computer and deleted her Outlook file per company policy. The court left the issue for the jury, determining that a jury would need to decide issues of credibility.
  • Guyton v. Exact Software North America, Case No. 14-502 (S.D. Ohio, Dec. 21, 2015): In this age discrimination and sex discrimination suit, Plaintiff, a woman over the age of 40, sued her employer for wrongful termination after receiving a Right to Sue letter from the EEOC. She alleged that Defendant made false statements during the EEOC investigation and sought to compel production of emails regarding the termination decision and native format versions of Defendant’s affidavits with metadata. Although only one affidavit was signed and the affiants testified in depositions that the affidavits contained untrue statements, the court declined to order production of metadata. Instead, the court ordered Defendant to produce information about the affiant’s attempts to review and preserve documents.

Need Help with Plaintiff ESI Production and Requests?

Employees faced with workplace discrimination, employer retaliation or wrongful termination should remember that documentary and electronic evidence in such cases is key. Preservation of ESI is of utmost importance, and if the employer appears to have destroyed or withheld evidence, the assistance of an experienced eDiscovery firm could increase your likelihood of success. Contact the Plaintiff electronic discovery experts at ILS today to find out more.

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