The Importance of Timely Preserving Email in Employment Discrimination: Part I

Shooting Self in Foot.jpgA prominent Detroit law firm, Honigman Miller Schwartz and Cohn, was recently sued by a former executive assistant after she was discharged following an on-the-job injury and related employment discrimination claims.

For any employer, dealing with such a garden variety employment discrimination claim has risks and costs. But the suit against Honigman also provides a cautionary road map for employers about how these risks and costs may spiral out of control by failing to properly preserve emails. And as this two-part series explains, failing to properly implement a litigation hold can equate to shooting yourself in the foot and making any employer - even prominent law firms - look silly.  

Properly Implementing a Litigation Hold is the First Step in Properly Defending against Any Employment Discrimination Claim

Brian Baxter of Law.com provides a thorough explanation of the factual background of the employment discrimination lawsuit against the Honigman law firm (including the sordid details comparing the law firm environment to that of Mad Men).

But for purposes of this post, it is important to note that after the suit was filed the Detroit-based law firm and its firm's vice-chair and attorney, Alan Schwartz, were accused of withholding or failing to preserve important discovery materials, including e-mails. This failure was highlighted in Plaintiff's Motion to Compel Discovery (PDF). In sum, Plaintiff alleged that Defendants made a "unilateral, undisclosed decision not to provide electronic information dating back more than 90 days from the date of the written request was made because all emails are automatically deleted after 90 days" under the law firm's retention policy. Spoiler alert: Failing to "turn off" any automatic email deletion programs in response to employment litigation is generally not going to turn out well for your company.   

Parties to litigation have obligations to preserve information

It is important to understand two important points before discussing why automatic deletion of email conflicts with the proper defense of an employment discrimination claim:

  • First, a party to litigation has an an obligation to preserve information relating to the litigation. This obligation includes documents, emails and related digital information;
  • The duty to preserve the preceding types of information arises not only when litigation is filed but it also arises when a party reasonably should know that the evidence may be relevant to anticipated litigation.

A litigation hold, therefore, simply refers to preserving information, regardless of the format (e.g., documents, emails, databases, paper etc.) in the context of litigation.Against this backdrop, it is critical for any party anticipating or involved in litigation to determine the "trigger date" for when its obligation to preserve information begins.

Defendants appear to shoot themselves in the foot when it comes to pulling the preservation trigger

There are multiple instances of "when" the Defendants should have implemented a litigation hold, i.e., preserved relevant information in the litigation. For example:  

  • In 2006 and 2009, Plaintiff's Motion notes that Defendants' privilege log identified documents being withheld from production based on the attorney-client privilege and attorney work product doctrine (a review of the log, however, shows that the earliest work product dates back to 2009). Attorney work product describes content that is generally created in anticipation of litigation and anticipation of litigation should equal preservation.
  • On September 29, 2010, according to the Complaint, Plaintiff received from the Equal Employment Opportunity Commission (EEOC) a right to sue letter. It is not clear when Plaintiff first filed her complaint with the EEOC. But again, the EEOC charge should have triggered a preservation response. 
  • The case was filed on October 12, 2010, which unquestionably triggers a party's obligation to preserve emails/information relating to the filed litigation.
  • On November 9, 2010, Plaintiff served her written request to Defendants for production of documents and information - electronic or otherwise. 

Despite this time line, the defendant law firm and attorney failed to suspend an automatic email deletion program in relation to any of these trigger dates. This failure is especially difficult to reconcile when Defendants were supposedly preparing for litigation in 2008/2009 or, at the latest, upon the EEOC filing.

The second part of this post will discuss the consequences for failing to properly manage preservation obligations in response to an employment discrimination claim and steps to avoid that scenario.    

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