HR professionals know that employment litigation can be expensive. Very expensive. One reason litigation has become so expensive, especially recently, is because companies use and store massive amounts of electronic data, including emails and computer files such as Microsoft Word and PowerPoint documents. When a company is sued for an employment law violation, the plaintiff (in most cases, a former employee) is entitled to “see” all of those electronic files that may be relevant to the claims brought or the defenses relied on by the employer. This process is commonly referred to as “e-discovery.”
Generally, e-discovery is a mostly one-sided affair. The employer must review and produce thousands of emails and electronic documents. More often than not, the plaintiff-employee is not required to do much at all. Why? Because typically the employer possesses all or nearly all of the relevant documents: company emails, personnel files, salary information, disciplinary notes, performance reviews and other relevant materials. The former employee, on the other hand, does not usually have these documents anymore and is therefore not required to spend much time or money on e-discovery.
However, that is not always the case. Occasionally, an employee’s personal emails or social media postings can be relevant to a case, especially when the employee’s mental or emotional state is at issue. Take, for example, a recent case brought by the EEOC against the Original Honeybaked Ham Co. of Georgia which involves claims of sexual harassment and retaliation. The EEOC is seeking damages for alleged emotional and financial harm for roughly 20 female employees. As a result, the court recently ordered the employees to review and turn over various electronic records (emails, social media postings, and text messages) that may be relevant to their emotional state, credibility, or bias.
The judge in the case illustrated the relevance of these electronic files by comparing a hypothetical situation where each employee has a paper file entitled “Everything About Me.” If such a folder existed, then any relevant portions of that folder would have to be produced in discovery. The court saw no reason to view electronic records differently. According to the court, “[t]he fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.”
You can bet that the employees in this case were not happy to learn that they must allow review of their personal emails, text messages, and Facebook posting and that those relevant to their claims or alleged damages will have to be produced to their former employer. But, as our lives become more digitized, this may occasionally turn the tables in litigation brought by employees.
Regardless, the best route is to try to avoid situations that may end up in litigation with current or former employees whenever possible. As an HR professional, having and achieving that goal is one of the best ways you can show your true value.