Overview: E-discovery is a system for attorneys to exchange information among themselves and with participating state and federal courts electronically. Given the development of technology and its ability to make the litigation process more efficient, e-discovery is increasingly prevalent in federal litigation, to the point that the Federal Rules of Civil Procedure have been updated twice, once in 2006 and again in 2010 to reflect e-discovery protocols.
For HR professionals, e-discovery can be useful in helping in-house or external counsel to identify relevant documents or records to assign "litigation hold" status in preparation for litigation. Further, the e-discovery platform can make the HR professional's job easier as a liaison to an employment attorney, enabling him or her to obtain, handle and review e-discovery documents in real time, interactively. This means that HR professionals should be familiar with federal rules pertaining to e-discovery and accompanying state laws and guidelines for handling, processing and submitting data as e-discovery evidence.
Commensurate with e-discovery privileges are also its responsibilities. The prevalence of e-discovery and the relevant ease of storing data electronically render judges, juries, arbitrators and mediators much less sympathetic if employers misplace data or crucial documentation. This leads to spoliation charges (misplaced evidence is treated as "destroyed") which may result in fines, civil penalties or outright negative verdicts in state and federal court.
Trends: As e-discovery becomes more common as a tool to make litigation more efficient, the HR professional's role in receiving, processing and responding to e-discovery demands becomes more important. The trend is for e-discovery to become more encompassing, moving toward the ultimate goal of making all electronically stored information (ESI) discoverable. The updated federal rule, Federal Rule of Civil Procedure 26(a), pertains to all ESI including email, voicemail, text messages and databases maintained by the employer. Many states are following suit, developing their own e-discovery rules.
Thus, employers would benefit from well thought-out e-discovery protocols to gather, store, preserve and analyze all electronic information in the event that it will become a relevant piece of information necessary to defend a lawsuit.
Author: Michael Jacobson, JD, Legal Editor
Guidance for HR on e-discovery, the sources of e-discovery rules and guidelines, and its impact on the HR professional's responsibilities as a liaison to employment attorneys.