Why is it so important that HR take electronically stored information (ESI) seriously? Elementary, my dear HR professional.
Technology is a wonderful thing. Businesses moving their data into “the cloud,” mobile access to corporate webmail, instant messaging, text messages, databases of voicemail and keycard accesses, the ability to enroll in corporate benefits plans online…what could go wrong?
In a word: plenty.
On an increasing basis, employment litigation involves “discovery” (investigation) of electronically stored information (ESI), meaning that all of the data you may think is password-protected or otherwise private or proprietary…isn’t.
Some way, somehow, an enterprising attorney or regulatory agency (with or without the skills of a super sleuth) may get access to all of it, whether it’s stored on monolithic network towers in that room you’re not allowed access to, archive tapes, the cloud or yes, right there on your
loathed beloved corporate-issued laptop or smartphone.
Discovery of ESI is so common that the Federal Rules of Civil Procedure now include so-called “e-discovery” measures covering all ESI that may be relevant to a particular dispute, expanding on the document retention procedures that employers have already put in place.
Many states are following suit, beginning to devise their own e-discovery rules pertaining to the discovery of ESI. Worse yet for employers, if the information demanded is not relevant or the demand for ESI is too overbroad or burdensome, it becomes the employer’s burden to prove that to a judge.
Thankfully, XpertHR has plenty of guidance for HR on preventing and preparing for litigation by assessing recordkeeping practices. However, HR must still treat its ESI like any other crucial evidence to a dispute. To that end, HR professionals must be very selective of the language they use in electronic communications and they must cultivate and help enforce record-keeping procedures for handling, storing and preserving ESI in the event the employer is required to produce it for discovery.
These procedures should extend to the types of documents companies retain and the documents companies may normally destroy in the regular course of business.
So remember, ESI can be quite useful for employers in that it enables them to create, share and store information seamlessly. But in the dastardly world of employment litigation, it can be as damning as a smoking gun or an oily fingerprint on a revolver, even if the adversary to your company’s litigation interests isn’t quite…Sherlock Holmes.
In Part Two of this piece, we’ll discuss two recent cases where ESI was used against an employer as evidence of claims for retaliation.
In the interim, tell us, HR world – has an email, text message or other form of ESI ever come back to haunt you?