Get Out in Front Before It Bites You in the Behind
E-discovery is an increasingly important topic in all litigation, and employment litigation is no exception. By getting out in front of e-discovery as soon as you anticipate litigation (or even before) you can save money, time, effort and aggravation. Class action, multi-plaintiff and disparate impact discrimination claims almost always lend themselves to significant e-discovery burdens. However, even relatively straight-forward disparate treatment discrimination claims can also result in the production of many gigabytes of electronic data when plaintiffs seek to compare themselves to others who they claim were treated more favorably. In addition, non-compete and business tort litigation against former employees can include vast amounts of e-discovery when attempting to prove damage claims. In short, big time e-discovery is not limited to securities, intellectual property and pharmaceutical litigation. Employment litigation is not immune from e-discovery.
It is important to consider how your data is stored and can be retrieved when preparing for the potential of e-discovery. If you do not have the expertise yourself, consider spending a few dollars on an e-discovery database expert who can advise you on mapping your information systems specifically for employment related information to ease your e-discovery burdens when and if they arise. It will be money very well spent and will save significant money, time and aggravation in the event of litigation.
The Legal Hold
As soon as you reasonably anticipate litigation you have an obligation to preserve information that may be relevant to the claim. This does necessarily mean that this obligation runs from the time you are served with a lawsuit. It may start much earlier, such as when you get a demand letter or, in the case of a non-compete case, when you learn the employee (or former employee) is planning to or is competing with you. As soon as you anticipate litigation it is important to contact legal counsel to discuss what type of information should be preserved, particularly if you have a policy of routinely purging certain data. This discussion may turn on types of data to preserve, custodians of data, or certain departments or locations where data should be preserved.