Focus on Merits of Employment Discrimination A recent employment discrimination lawsuit underscores the importance employers must place on preserving and producing electronic evidence. As explained below, the employer lost an opportunity to avoid significant costs associated with searching and recovering emails.

Specifically, in Wagoner v. Lewis Gale Med. (7/13/16), the plaintiff sued his former employer Lewis Gale Medical Center LLC for violating the Americans with Disabilities Act. Plaintiff claimed his employment was terminated after two months in violation of the Americans with Disabilities Act (the “ADA”), including for unlawful retaliation and failure to accommodate.

In discovery, plaintiff requested electronically stored information maintained by two of his former supervisors. To the credit of plaintiff’s attorney, these requests were further limited to a date range of only four months and certain search terms.

The employer responded that it could not perform the search itself and would need to hire a third-party vendor. The estimated cost for the search and retrieval was $45,570.00 with an additional estimate of $24,000 for reviewing the information. The employer further argued that the requested electronic discovery wasn’t proportional because the plaintiff had only worked for two months as a security guard and his potential damages were less than the cost to perform the search.

The Court rejected this argument. In large part, the Court focused on the employer’s failure to use a system that didn’t preserve e-mails in a readily searchable format, requiring the costly production of e-mails.

The judge further noted:

Employment discovery presents particular challenges to the employees where most, and sometimes all, relevant discovery is in the control of the employer. Here, in light of the limited request, restricted by custodian, search terms, and time period, I find the request proportional to the needs of the case.

While these concerns are legitimate, this case also highlights the unique and no less problematic challenges faced by businesses sued for discrimination. Those challenges include assymetrical and significant recovery and production costs; managing relevant information disbursed across multiple custodians; and often less than ideal record retention policies not suited for litigation needs. Unfortunately, judges are not always sympathetic towards these issues.

Don’t Let E-Discovery Became a Sideshow to the Main Event

All too often, electronic discovery preservation and production issues can become a sideshow. As such, this sideshow becomes, at best, a distraction from the main event, i.e. the merits (or lack thereof) of the litigation. For this reason, we make it point to work with our business defendants to take appropriate measures to manage this aspect of the litigation. Such efforts go a long way to counter arguments from opposing counsel that the court should intervene by imposing overbroad preservation obligations.

Further, the cost of electronic discovery can transform a weak discrimination lawsuit that would otherwise have only “nuisance” settlement value, into considerably more. Going back to the Wagoner case, the employer estimated it would cost almost $70,000 just to respond to this subset of the litigation in a matter where the plaintiff only worked for the company for two months. That sort of price tag often weighs heavily in favor of settlement regardless of the merits.

Maintain a Reasonable Focus for Obtaining Digital Evidence

Also, it should be emphasized that the plaintiff’s attorney set the stage for a compelling argument by narrowly tailoring the discovery requests to specific custodians and a specific time-frame.

In contrast, we often come across absurdly broad electronic discovery requests in employment discrimination and related lawsuits. See Trade Secret Computer Inspections Should Require More than Knee Jerk Reactions where we discussed a request to preserve and produce computers and digital information “owned or used by [Plaintiff], his immediate family members and [Plaintiff’s new employer].” The Court in the above lawsuit clearly took notice that the requested electronic evidence was limited in both scope and time.

For more information about this article or preserving electronic evidence in employment discrimination lawsuits, please contact attorney Jason Shinn. Mr. Shinn began his legal career as a member of a manufacturer’s trial team where he was responsible for implementing electronic discovery preservation and production strategies, as well as briefing and responding to plaintiffs’ motions concerning these issues. He now routinely assists attorneys and companies with e-discovery issues involved in employment and other litigation.