This question came to me in connection with a matter I’m working on. Of course, I can’t disclose any details about it. But it got me thinking . . .
Increasingly, electronic evidence is becoming an important part of employment litigation, as with all litigation. In the case I’m working on, the electronic evidence is quite damaging to a former employee’s position.
Like so many legal issues, the answer to the question of who benefits more from this litigation trend is “it depends.” Two things can be said with certainty about the availability of such evidence:
Let’s start with employers.
In their most common position in employment litigation, as defendants, employers can use electronic evidence, e-mail in particular, to “dig up dirt” on the plaintiff(s).
Harassment
In a harassment case, for example, it is a defense lawyer’s dream to find evidence that the plaintiff who claimed to be devastated by sexually-oriented joking and imagery had herself passed such jokes or pictures among coworkers via e-mail. (This would be useful in showing that the conduct was not in fact offensive and unwelcome to the plaintiff.)
Termination
Electronic evidence may help an employer avoid liability for an allegedly discriminatory termination by supporting the employer’s nondiscriminatory reasons for the challenged termination.
In today’s business environment, information relevant to employee performance deficiencies that in an earlier day may have been orally communicated and never recorded on paper may instead be communicated by e-mail, leaving a telling record much more persuasive — and persistent — than oral testimony.
After-acquired evidence
In an termination case, electronic evidence could also be useful as a back-up defense, provided the employer has a proper policy in place regarding appropriate use of company computers and e-mail.
If post-termination investigation into the electronic record discloses that the employee-plaintiff violated such a policy, and this violation would have been grounds for termination if it had been discovered during employment, this could be considered “after-acquired evidence.”
Such evidence is not a defense against liability, but cuts the legs out from under the terminated employee’s claims for reinstatement and back pay.
Common policy violations that may be found through a post-termination review of electronic evidence include: downloading, viewing, or transmission of sexually explicit materials; Internet gambling; and excessive personal e-mail and Internet use during working hours. As always, it is essential that policy enforcement be consistent and nondiscriminatory. See Olson v. IBM, 2006 WL 503291 (D.Minn. Mar. 1, 2006) (after-acquired evidence of pornographic content on plaintiff’s company-issued laptop creates issues for trial; summary judgment for plaintiff on this issue denied).
Noncompete and trade secret
Finally, there is one growing category of employment litigation in which employers are often the plaintiffs — noncompete agreement and trade secret enforcement.
In such cases, there is a very real possibility of uncovering case-winning electronic footprints of a departing employee’s improper transmission or retention of confidential information and/or trade secrets. Indeed, a few years ago I achieved an extremely favorable early settlement on the basis of such electronic evidence — on my client’s own computers.
Now what about employees?
Smoking guns
Perhaps the most obvious use for electronic evidence in employment litigation is employees looking for “smoking gun” evidence of unlawful motives behind management decisions.
At least in the earlier days of corporate e-mail usage, e-mail was treated as a very casual and transitory medium of communications. All manner of secretive and impertinent remarks could be fired off — to be read and promptly deleted.
Now (maybe) we know better. In fact, e-mail is like the pink stain in The Cat in the Hat Comes Back — every effort to get rid of it merely leaves another damning track.
First it lands in “deleted items.” Deleted from there, it may remain in recoverable form unless and until written over. Deliberately writing over e-mail using special software for this purpose may itself leave a track, setting the computer user up for a spoliation charge. And then there are the server backups!
So how likely is it that a plaintiff-employee will actually find that “smoking gun”? It depends on whether anything unlawful actually occurred, of course, but also on whether management has learned to handle e-mail with the care it deserves.
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