The Smoking Tweet
California Lawyer

The Smoking Tweet

January 2012

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The classic "he said, she said" confrontations in employment cases are becoming a thing of the past as electronically stored information (ESI) proliferates, and discovery often yields indisputable electronic documentation of what people said and did. The challenge, of course, is sifting through all of the cyber junk to find that "smoking tweet."


All parties have a duty to preserve evidence, including digital evidence, when a party reasonably anticipates litigation (Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Sec's LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010)). For an excellent discussion of the applicable standards that trigger this duty, see the opinion in the case commonly referred to as Zubulake I (Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)). Indeed, all parties should develop a plan for handling ESI during the initial discovery conferences between counsel. (See O'Bar v. Low's Home Centers Inc., 2007 WL 1299180 at *4 (W.D.N.C.) (court provides guidelines).) As the multiple opinions in the Zubulake debacle illustrate, failure to properly preserve evidence can result in sanctions against both the client and, in appropriate instances, legal counsel (see Zubulake V, officially Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)).

Identifying ESI

Both the Federal Rules of Civil Procedure and the California Code of Civil Procedure provide a safe harbor for parties who lose ESI as a result of the routine, good-faith operation of an electronic information system. (Fed. R. Civ. Proc. 37(e); Cal. Code Civ. Proc. § 2031.060(i)(1) and 2031.300(d)(1); Gippetti v. UPS Inc., 2008 WL 3264483 (N.D. Cal. 2008).) This may provide some comfort to employers who bear the brunt of the preservation obligations, although employees may also possess relevant evidence that will be lost if it is not preserved at the outset of the case.

Third Parties

But what if the employee doesn't possess all of the ESI? Or what if the employer simply wants to double-check with an Internet service provider to make sure everything worth looking at has been produced?

The governing statute is the Stored Communications Act (SCA) (18 U.S.C. § 2701-2712), which prohibits a "person or entity providing an electronic communication service to the public" from "knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service." (18 U.S.C. § 2701(a)(1).) Thus, under ordinary circumstances, Internet service providers will not produce email in response to a subpoena in a civil case. (See Suzlon Energy Ltd. v. Microsoft Corp. (2011 WL 4537843 at *2).) If an employee has deleted relevant personal email, a court may order the employee to request his own email records from an Internet service provider and then produce the responsive documents. (See Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. 2009).)

Once relevant ESI has been requested, the opposing party should not tamper with it. But cornered employees have been known to turn to products the likes of Zilla Data Nuker and Evidence Eliminator to cover their tracks. If an employer suspects destruction, consider having a forensic computer expert obtain a mirror image of the employee's hard drive - even from his or her home computer. It may not be possible to review all of the captured files due to privilege and privacy issues, but at least relevant information will be preserved. (See White v. Graceland College Center for Prof. Devel. & Lifelong Learning Inc., 2009 WL 722056 (D. Kan.).)

Drastic Discovery

A forensic expert can look for suspicious activity on the targeted computers - nothing looks worse than a hard drive that had parts wiped clean right after a case begins. But these experts are not cheap, and the court may order two-way data access, thus allowing the employee to image the employer's hard drives as well. However, keep in mind that courts require a strong showing before they will order such a "drastic discovery measure" (McCurdy Group v. Amer. Biomedical Group Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)). Some courts will deny a request for production of a hard drive unless there is an affirmative showing of misconduct (Han v. Futurewei Tech's Inc., 2011 WL 4344301 (S.D. Cal. 2011)).

Although companies may groan at the cost of complying with their electronic discovery obligations when defending an employment case, at least in an age when people seem to tweet or text their every thought, the ESI may offer just the evidence that's needed.

Aaron F. Olsen, an associate with Epstein Becker & Green, works in the firm's labor and employment practice in Los Angeles. Bo Links practices civil law with Slote & Links in San Francisco. He is also a mediator and arbitrator, and the legal editor at California Lawyer.

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