Five Quick Tips on Handling eDiscovery in Employment Litigation

Written by: Adam C. Losey and Scott Callen

Employment litigation can be expensive and time-consuming, especially due to the increased importance of and focus on ediscovery (the grab-bag of legal and logistical issues associated with the management, identification, preservation, collection, search, review, and production of electronically stored information). Below are five quick tips for efficiently and effectively handling ediscovery in employment cases:

• Have a System in Place to Determine When You Need to Keep Documents Safe. A company has a general duty to preserve information, including electronically stored information like email, related to reasonably anticipated litigation. There can be serious legal consequences for failing to locate and preserve litigation-related information, and this legal duty can be triggered before a lawsuit actually is filed. You should have a legal review process in place to route information to the right people to make a judgment call as to whether you have a duty to preserve, so that you can then meet that obligation by keeping certain documents safe.
• Understand the Scope of Electronic Information Before Litigation Hits. Electronic information is much more than email. Employment cases typically involve the production of different types of data from complex databases, including timekeeping systems, payroll systems, and data in shared or cloud storage. Put in some effort on the front end (before litigation hits) to prepare a data roadmap so that you can understand what data you have and where your data is located.
• Have a Document-Retention Policy. If followed in good faith, document-retention policies outlining how you manage, store, and get rid of your data can give you special protections under the law when you have deleted data in the past that is relevant to current litigation. You should have a document-retention policy in place, and should make sure you follow the policy.
• Do Not Let Lawyers Unnecessarily Lead You Into to Spending a Fortune. Some attorneys will try to use ediscovery as a weapon, and will try to cram burdensome discovery requests on your company as a litigation tactic. Lawyers also may not realize or appreciate how difficult it can be to respond to overbroad discovery requests, which often stems from not understanding technology. There are burdensomeness boundaries in discovery, and you should check with an ediscovery professional to ensure that your money is being well spent.
• Consider Technology to Assist in Document Review. Technologically assisted review (done correctly and in the correct situation) can enable you to defensibly review millions of documents at a much lower cost than utilizing eyes-on review. While it is not appropriate in every case, this review technology is similar to your email spam filter (which does a good job of automatically picking out “spam” emails and leaving out the rest). You can essentially use the same technology to train a system to pick out the relevant documents in litigation.