Total Articles: 10
Initial Discovery Protocols for Employment-Discrimination Cases
The exchange of initial disclosures between parties in a lawsuit brought in federal court is not generally considered the most useful endeavor. The parties have to exchange a few pieces of information but, for the most part, expect to get into the substance of the case only after formal discovery has begun in earnest.
No Friend of Mine: Court Denies Facebook Discovery
We recently posted about Zimmerman v. Weis Markets, a case in which a Pennsylvania court required an employee to turn over his Facebook and MySpace log-in information to the opposing party during discovery. An earlier-filed opinion from a different judge in the same court, though, reached a different conclusion. In Piccolo v. Paterson, Pennsylvania Common Pleas Court Judge Cepparulo denied a motion to compel the plaintiff to accept a Facebook friend request from opposing counsel.
Pa. Court Finds Facebook Posts to be Discoverable Evidence
Social media as evidence in an employment lawsuit is an area of the law that is, to put it mildly, unsettled. A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. CP May 19, 2011), the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery.
Ignorance Is Not Bliss: Knowing When to Issue a Litigation Hold.
Has your company adopted a records management and document retention program that will pass legal muster? Does your company have a protocol in place to ensure that a litigation hold is issued at the right time and to track compliance after the hold is issued? If not, a recent federal court decision serves as a stark reminder that employers must issue litigation holds on a timely basis and track compliance with the directives found in the hold. In Green v. Blitz U.S.A., Inc. (E.D. Tex. 2011), the court sanctioned the defendant in a products liability case when it learned, more than two years after the case had closed, that the defendant declined to issue a litigation hold and destroyed potentially relevant documents.
MENTAL EXAMINATIONS IN EMPLOYMENT LITIGATION
Employers who are sued by current and former employees are often surprised by the degree of emotional distress alleged to have been caused by their supposed “outrageous,” “extreme,” “shocking,” and/or “despicable” conduct. Nevertheless, such allegations are made only partly for the sake of hyperbole in discrimination, harassment, and retaliation cases. Certain damages, such as lost wages, must be supported by concrete evidence. However, damages for emotional distress, available for many employment-based claims, are hard to prove and are largely left to a jury’s discretion. The courts instruct jurors to “use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense.”
Social Media Passwords and Account Content are Discoverable
Social-media usage and privacy interests continue to be a hot litigation topic. An individual’s LinkedIn, Facebook, and MySpace accounts, as well as their text messages and tweets, can be pay dirt for litigators looking to advance or defend a claim. Accordingly, disputes about formal discovery requests for an opponent’s social media profile and similar information are making their way to court. We’ve previously posted about Romano v. Steelcase, in which the court compelled a plaintiff to produce copies of her Facebook and MySpace profiles. In resolving the dispute, the court held that precluding plaintiff’s employer from obtaining the information “would condone [her] attempt to hide relevant information…”
Social Networking Sites and Discovery -- A Double-Edged Sword.
The advent over the past decade of a plethora of social networking sites such as Facebook, MySpace and Twitter has resulted in a potential treasure-trove of discovery for employers defending lawsuits and charges filed by employees. Communications on these websites can often reveal important personal information about employees – including information that may undermine or entirely refute claims. For example, an employee's posts on a social networking site could reveal that her claims of sexual harassment are actually derived from a consensual relationship with a coworker. The information contained on these websites can also be useful in other contexts. It could reveal that an employee has a substance abuse problem, that the employee is defaming the employer or divulging trade secrets, or even that a potential employee has a history of violent behavior.
BP Oil Spill Demonstrates Why Litigation Hold Instructions Are Invaluable.
Anyone who works with me knows that I place a lot of emphasis on litigation hold letters. In the most general sense, litigation hold instructions are invaluable because they cause everyone involved to pause and think about what they are doing with relevant information. The primary purpose of litigation hold instructions is to make sure that evidence, whether it be a hard-copy document or an e-mail, is preserved. Litigation hold instructions can be used defensively (e.g., sending hold instructions to your team after a you have been altered to a potential for litigation) or offensively (e.g., sending instructions to your opponent to make sure that they dred life preserver rafto not despoil any evidence).
Opening the Door to Facebook: Severe Emotional Distress May be the Key.
A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile. The 13 page decision in EEOC v. Simply Storage Management that was issued on May 11, 2010 is a textbook example of what a good discovery ruling should be.
Zubulake Revisited - Preservation Obligations and Sanctions Standards Clarified.
In Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities, LLC
et al., No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y., Jan. 15, 2010), Judge Shira A. Scheindlin revisits her
highly infl uential and often-cited Zubulake decisions.1 Although the case did not involve “any examples of
litigants purposefully destroying evidence,” the failure to timely institute written litigation holds constituted
gross negligence. That failure, coupled with plaintiffs’ “careless and indifferent” preservation and collections
efforts, warranted the imposition of severe sanctions. The Pension Committee decision reinforces the essential
need for organizations to have a well-planned, robust records management program and corresponding
eDiscovery response plan.
