When employees sue your organization, you must turn over any related documents—including old e-mail messages and computer records—during the discovery phase. But be aware that recent changes to the Federal Rules of Civil Procedure place an even greater burden on you to come clean with what information you have.
Most important, the rule changes require both parties in federal lawsuits to sit down at the outset of the case and hammer out a plan for electronic discovery. The rules took effect on Dec. 1.
The rules also define what “reasonably accessible” electronic information the parties must turn over. Lawyers representing employees will be able to demand copies of electronic records in a form that can be searched electronically. (You won’t be able to simply print the records.)
Meanwhile, federal courts considering Florida cases have already begun cracking down on employers that don’t promptly search for and turn over e-mail records.
Recent case: After Brenda Wells sued the Orange County School Board over her termination for alleged discrimination, her lawyers asked for copies of e-mails circulated among managers and school board members.
Nearly a year later, the school board admitted it had only called its IT office and asked if it could produce e-mail records. Later, IT confessed it hadn’t given much thought to how it could search individual e-mailboxes, and therefore didn’t do so.
That wasn’t good enough for the court, which fined the school board for its tardy response to the e-mail request. (Wells v. Orange County School Board, No. 6:05-CV-479, MD FL, 2006)
Advice: Now’s a good time to talk with an attorney and IT about the best practices to retain and purge e-mail and other e-records. Remind employees to avoid sending e-mail that includes confidential company info, personal data about employees or anything they wouldn’t want their mothers to read.
Online resources: To read about the new electronic discovery rules, go to www.uscourts.gov/rules/newrules6.html and click on Civil Rules 16, 26, 33, 34, 37 and 45.