When we think about the universe of discoverable records during the course of pending litigation, we usually call to mind all of the business records responsive to the other party’s claim. Most businesses generally assume that the scope of discoverable documents includes only work-related items in the company’s custody: work emails, papers, documents on company workstations and servers, etc. Private emails and files on employees’ own personal devices and home computers, it is often presumed, are beyond the purview of litigation. However, a recent ruling in a Federal case from the Eastern District of New York has potentially upended this assumption, blurring the line between business and personal records and altering the risk calculus of records managers.
In Sunderland v. Suffolk County et. al., Case No. 13-4838 (E.D.N.Y., June 14, 2016), the plaintiff alleged unlawful discrimination by several physicians employed with the Suffolk County Department of Corrections. The plaintiff, who is transgender, brought suit under Federal Civil Rights law, asserting that defendants had intentionally withheld medically necessary hormone treatment while incarcerating her.
During discovery, the plaintiff sought all evidence related to bias or deliberate indifference to gender identity, gender dysphoria, transgender status, and sexual preference. In addition to emails and records in the custody of the Department, plaintiff also filed a motion to compel production of responsive documents kept in the personal computers and email accounts of the physician defendants.
In granting the motion to compel, the court wrote that the physicians’ personal files and emails “may contain information going to bias which may show why a personal computer was used for such communications.” The court did not consider the request “unduly intrusive or burdensome.”
The ruling makes clear that employers cannot assume that the only records subject to eDiscovery are those within their own custody and control. Employees’ personal documents and emails may become discoverable, a fact which cautious employers should note when designing their company-wide records management practices.
Although employers cannot directly control the religious, philosophical, or political beliefs in the hearts and minds of their employees or what they do outside of office hours, but they can set policies and adopt practices targeted towards minimizing their enterprise’s exposure to liability or sanction based on discoverable records in employee custody. Employers should consider:
Setting policies that reduce the likelihood of discoverable records existing on personal devices. By strictly disallowing employees from conducting or discussing any business or work-related transactions on their personal devices, employers can reduce the potential of a court inferring the necessity of searching employee personal devices for responsive documents.
Recovering the records into records management. Where banning the use of personal devices for work is impractical or overly restrictive, employers should facilitate transferring those files to company servers or provide remote desktop or similar software solutions that guarantee work-related files are kept or duplicated within the direct control of the company’s internal systems. By subjecting these records to company oversight before the outset of litigation, employers can hedge against the likelihood of being blindsided by employee-held records during eDiscovery.
Providing devices so that employees are not tempted to use their own. With the ever-decreasing cost of laptops and smartphone hardware, the cost/benefit case for issuing company laptops and smartphones to all employees gets more convincing every year. Employers may find that choosing to provide employees with company-controlled devices to take home may potentially be less costly than choosing not to.
The progressive blending of private and professional life has certainly complicated traditional records management practices. But, by adopting a proactive approach, enterprises can reduce their risk profile while continuing to reap the productivity benefits of ongoing technological progress.
About the Author:
Frank Fazzio is an Analyst and Licensed Attorney with the Consulting Division at Zasio Enterprises. He possesses broad knowledge of international financial services and banking, and his legal background is focused on corporate law, regulatory compliance, bankruptcy, and securities. Frank’s work includes developing enterprise records retention schedules and advising on the application of jurisdiction-specific laws and regulations to enterprise records systems. Before joining Zasio, Frank gained extensive experience in the financial services sector by working as a financial modeling trainer on Wall Street, where he partnered with several multinational investment banks to train their new-hire analysts and associates in financial statement analysis, best-practice valuation methodologies, capital markets, M&A deal structuring, and financial forecasting. He received his undergraduate degree from the Wharton School of Business at the University of Pennsylvania, where he earned a B.A. in Economics and a B.S. in Finance. After his undergraduate studies, Frank went on to earn a Juris Doctor from Fordham University School of Law in New York City and is admitted to practice law in New York and Idaho. Frank also holds the Information Governance Professional certification.#litigation #discoverablerecords