THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS Cynthia L. Gibson, Esq. Katz, Teller, Brant & Hild 255 East Fifth Street Suite 2400 Cincinnati, OH 45202 (513) 977-3418 cgibson@katzteller.com
Changes to the Federal Rules The Federal Rules of Civil Procedure Governs the process for litigation in our federal trial courts Amended December 1, 2006 to address how electronically stored information ( ESI ) is to be exchanged during litigation
Examples of ESI E-mails Webpages Blogs Word processing files Spreadsheets Databases Magnetic disks Thumb drives PDAs Cell phones mp3 players Metadata RAM (random access memory)
Discovery In litigation, the parties are entitled to discover information from one another All information that is reasonably likely to lead to the discovery of admissible evidence can be discovered Does not have to be admissible to be discoverable
Paper v. ESI Easy when discovery involved paper Static Only destroyed by affirmative action Passivity Preserves Destruction is permanent More manageable volume
ESI v. Paper Volume Duplication and multiple locations Version differences Susceptible to change both intentionally and unintentionally Passivity can lead to destruction Shadowed and recoverable Metadata Can be incomprehensible when separated from the system that created it
Rule Changes December 1, 2006 Judicial Conference on the Rules of Practice and Procedure mechanisms for providing full disclosure in a context where potential access to information is virtually unlimited and in which full discovery could involve burdens far beyond anything justified by the interest of the parties to litigation
The Convergence of Law and IT Lawyers and judges are not typically IT experts Explosion of third party vendors providing electronic discovery services Even the court can appoint a special master or neutral expert, or ask the parties to provide technological expertise
Attorneys Must Discuss and Disclose ESI Issues Rule 26(f) conference and initial report Where ESI is stored Status of ESI (active, deleted, backup tape, archive) Preservation of ESI Remember ENRON How ESI will be exchanged Form of production Format media Schedule for production Accessibility Allocation of costs
Involvement of the Court Court is invited to address ESI in its initial scheduling order Court must be informed about the results of the lawyers discussions about ESI in the scheduling conference
Format of Production May provide electronic access to data, rather than responding to requests for information ordinarily maintained or form or forms that are reasonably useable Cannot be a data dump
Process of Production Requesting party can specify form requested (e.g. inclusion of metadata) Responding party can object If no form requested or agreement, party can produce in native format or in reasonably usable form Trend is to require metadata
Williams v. Sprint Reduction in force litigation Sprint scrubbed the metadata from the spreadsheets used to do the adverse impact analysis Court did not sanction Sprint but ruled that attorney-client privilege was lost for certain aspects of the metadata
Two Tier System Reasonably accessible Party must produce and court involvement is not necessary Producing party bears the cost of production Not reasonably accessible Unless parties agree, court gets involved Responding party must prove not reasonably accessible Requesting party must show good cause and may have to pay cost
Reasonably Accessible? The sixty-four million dollar question Backup tapes Metadata RAM Overwritten or deleted files Legacy systems
Warning Must take action to ensure that reasonably accessible files do not become inaccessible once you are on notice of a claim Cache LaPoudre Feeds LLC v. Land O Lakes, Inc. Make sure to stop automatic changes in format
Privilege Issues Risk of inadvertent disclosure Question of waiver and return of privileged information Rule 502 of the Federal Rules of Evidence amended in fall 2008 Inadvertent disclosure does not waive the privilege so long as reasonable steps to prevent disclosure are taken State law issues remain
Non-Parties The rules regarding ESI apply to nonparties who receive a subpoena requesting information ESI is included in information that must be searched and produced Two tier analysis regarding accessibility required when responding
Good Faith Rule Rule 37(f) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Unless under a preservation obligation
Similar State Rules Alaska Arizona Arkansas Connecticut Idaho Illinois Indiana Iowa Kansas Iowa Kansas Louisiana Maine Maryland Minnesota Mississippi Montana Nebraska New Hampshire New Jersey New York North Carolina Ohio Texas Utah Virginia
EEOC RULES 29 C.F.R. 1602.14 Does not directly address ESI Respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action No reasonably accessible limitation
Statutory Framework 42 USC 2000e-8(c) Employer must preserve records that are relevant to the determinations of whether unlawful employment practices have been or are being committed No reasonably accessible limitation
The Rules Both the court and the attorneys must affirmatively address ESI at the beginning stages of the litigation Must ensure ESI is located and preserved Two tier analysis regarding reasonable accessibility Must be mindful of privilege
Litigation Hold Elements to Consider Notification of all possible individuals and companies that may have information Description of charge or litigation Describe types of information and documents to hold Instruction to stop destruction procedures Include ESI provisions
The Rules and the EEOC Process
Charging Party s Personnel Record Official files Application Reviews Personnel file Unofficial files Managers and Supervisors Anyone in decision making process Include search for ESI
Possible Unofficial ESI Files Laptops Hard drives Thumb drives E-mail company and personal addresses Text messages Social networking sites PDAs MP3 players
Qualcomm v. Broadcom Example of what not to do Failed to produce over 200,000 e-mails directly relevant to the defendant s affirmative defense Patent was partially invalidate as a penalty Qualcomm ordered to pay $10 million in fees and attorneys referred for sanctions
Comparables EEOC in its request for information typically requests information regarding comparables Consider ESI search on comparables particularly if this will be a crucial part of your defense
Risks of Failure to Preserve EEOC v. LA Weight Loss Employer destroyed files regarding charging party s retaliation claim but EEOC s investigation was still pending Jury given adverse inference instruction: could infer that empmloyer destroyed the information out of a realization that it was unfavorable
Practical Strategies Understand rules relating to ESI and follow trends Evaluate how your company uses, stores and disposes of ESI Identify unofficial files Consider a data map
Practical Strategies, cont d Evaluate accessibility issues Backups v. Archives Metadata preservation RAM (random access memory) ROM (read only memory)
Develop ESI Policies Retention guidelines (can vary by type of record and department) Uniform and timely destruction Litigation hold capability and processes Tagging privileged ESI
Employee Education Communicate ESI policies Proper uses for ESI Management and storage E-mail and on-line etiquette Text messaging PDAs and mp3s Social networking sites
Implementation Periodic audits Involve your IT staff in developing the policies, processes and procedures as well as immediately upon learning of a claim to make sure there have been no technological changes Processes for when it is all over
Summary ESI has dramatically changed the world in which we lived It has also dramatically changed information that is exchanged in the course of an EEOC investigation and litigation Change will continue
Questions? Cynthia L. Gibson, Esq. Katz, Teller, Brant & Hild 255 East Fifth Street Suite 2400 Cincinnati, OH 45202 (513) 977-3418 cgibson@katzteller.com