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The New Electronic Discovery Rules Will Transform the Role of HR Professionals |
| Perry Mason was a great lawyer. As we watched and wondered how he was going to win a case, he would suddenly produce the smoking gun document which would destroy the witness's composure. Most episodes seemed to end in a weeping confession brought on by the surprise revelation of that key document. Those days are over. Lawyers must engage in discovery where all of the key documents are produced to opposing counsel well in advance of the trial. In fact, federal rules of civil procedure are now finally catching up with technology and addressing the discovery of electronic documents. The new electronic discovery rules now put electronic documents, such as e-mails, on the same playing field as other types of documents. |
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| If your organization is faced with the prospect of litigation, you must take action to preserve electronic documents. During litigation, your company may now be required to sort through what may be millions of electronic documents and produce to opposing counsel those that are relevant. Seems impossible? Just ask one of the many e-discovery vendors that are anxious to assist your company with this process. Basically, these vendors will take forensic pictures of your organization's computers, put all of the documents in a database and run searches to locate relevant documents. While you may think (or hope) this is an IT issue that has nothing to do with HR, you are wrong. Human Resources must work to establish a culture where electronic documents are work-related and not reflective of a discriminatory or unlawful work environment. The new electronic discovery rules will forever transform the role of the HR professional. |
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| Discriminatory E-mails |
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| Is it possible that employees have sent or received workplace e-mails which were racist, sexist or otherwise discriminatorily harassing? If the answer is yes, you need to be worried. E-mails are permanent. If you think that there's no problem because the e-mails were deleted, you're wrong. There are ways to recover e-mails even after they are "deleted." It will be increasingly common for plaintiff employment lawyers to discover discriminatory e-mails during litigation. Human Resources needs to ensure that employees are aware of this possibility. |
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| EEOC Position Statements |
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| It is probably rare that you or your attorneys send a position statement to the EEOC or another similar administrative agency and then discover documents that contradict something in your position statement. However, now that electronic discovery is soon to be the norm, that prospect is much more likely. Authors of position statements should now review electronic discovery in advance of locking into a position with an administrative agency. |
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| Retaliation |
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| Do you really know how a claimant's manager reacted after hearing that a current employee filed a charge of unlawful discrimination? Sure, during your investigation the supervisor seemed very professional. However, have you checked all of the relevant e-mails? They may show another story. |
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| Out of Context E-mails |
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| Most e-mails are written with far less thought than a formal letter. Further, most e-mails are very short and do not tell the full story. E-mails are treated more as an informal communications shortcut than as means of traditional correspondence. That informality and abbreviation means they are usually written in a way that can easily be taken out of context. Will e-mails written by your workforce come back to haunt your organization with respect to anti-trust issues, regulatory issues, compliance issues or in any other type of litigation? |
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| What Should You Do? |
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HR is sure to be blamed for inane e-mails that get the company in trouble. Your organization needs to consider a strategy in light of the new electronic discovery rules. There are three points to consider:
- E-mail policies - your company should have an electronic document retention policy. How long should e-mails be preserved? Where should they be kept? Also, what policies, if any, about the appropriate content or use of e-mails should be distributed to employees?
- Employers routinely monitor the workplace for safety issues, environmental hazards and quality control. Drug testing, surveillance cameras and security guards are increasingly common. Why then is e-mail surveillance so rare? If a "smoking gun" e-mail can cause your company tremendous public relations problems, cost millions of dollars and/or become a regulatory nightmare, don't you want to be on the lookout? E-mail surveillance can be a great tool to monitor for harassing e-mails, as well as a whole host of other issues.
- Most employees do not have a clue that their e-mails can be searched during the discovery phase of litigation and used against your organization during a trial. Further, most employees think that e-mails are temporary missives that are easily deleted. Finally, most employees do not spend much time writing e-mails and do not worry about them being taken out of context. These misnomers should be addressed in a training session.
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| Imagine the multitude of e-mails that employees may be sending and receiving at your organization as you read this article. Are you comfortable that the content or use of those e-mails is entirely appropriate? The new discovery rules have created the possibility that your organization may be required to justify or explain any of those e-mails or its other electronic documents in court. They have also created a new role for HR professionals. HR must act proactively to help ensure that your organization is jeopardized by a smoking gun e-mail or by the mishandling or misuse of electronic documents. |
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| To learn about online training about workplace e-mails, go to www.hrtrain.com/emailrisk |
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| Robert D. Lipman, Esq. and Allison Plesur, Esq. are employment lawyers in New York. They are also principles of Interactive Employment Training, Inc., an online training resource for e-mail risk training and other employment related online courses. |
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