Tag Archives: electronic communication

FYI, Text Messages and IMs Are Discoverable Too

Submitted by Suzanne Newcomb, April 12, 2018

Back in November we reported on a federal judge ordering several members of management to turn over messages from their personal email accounts and counseled employers to be proactive in managing employees’ use of personal email for company business. The guidance set forth there rings true for text messages and other forms of electronic communication (e.g. WhatsApp, Slack, Trello and myriad others) as well.

49297353 - woman using mobile phone in office workplace.As we explained in our prior post “document production” encompasses not only “documents” in the traditional sense, but all relevant information “stored in any medium” along with its metadata. To be fair, private entities are not required to retain every communication or even every document generated in the course of conducting business. But certain communications are subject to retention regulations and knowledge that litigation is “reasonably foreseeable” triggers a separate and distinct obligation to retain all information relevant to the potential dispute.

Companies that fail to preserve information once an obligation to do so arises run the risk a court will issue a “spoliation instruction” which allows the jury to assume, based on the fact that a party failed to retain relevant evidence, that the evidence it lost or destroyed must have been unfavorable to that party’s position in the litigation. Not a comforting thought for any business.

So, how does a company square the need to keep pace in today’s world of lightning-fast communication and also avoid falling victim to claims of spoliation?

  1. Electronic Communications Are Business Records. Remind employees all communications – including text messages and electronic communications sent via messaging apps — are official business records subject to retention policies and discovery in the event of litigation.
  1. Review your Litigation Hold Notice Form. Make sure it covers not only documents in the traditional sense, but also email, text messages, instant messages, and other forms of electronic communication.
  1. Regulate and Police How Your Employees Communicate. Publish clear policies addressing when texting and other forms of electronic communications are appropriate and when they are not. Can an employee text his/her boss if s/he is going to be late? Is it appropriate for sales personnel to negotiate terms with customers by text?
  1. Involve IT Professionals. Enlist the help of IT professionals to safeguard electronic communications the organization is required to retain and to establish protocols that will allow you to quickly capture communications (along with their metadata) that are relevant to actual or potential litigation when the need arises.


EEOC Electronic Charge Filing Is Coming – Are You Prepared?

Contributed by Noah A. Frank

In May 2015, the U.S. EEOC announced that 11 of 53 offices would begin to implement the ACT Digital Pilot Program, which facilitates communication between the EEOC and parties. The pilot program recently has been expanded to more offices, and appears to be here to stay. While this modernization and electronic communication appear appropriate at first, employers must be aware of the potential for significant pitfalls.

Employer Benefits:

Employers can use an online portal to obtain copies of discrimination charges, submit responses, and communicate with the EEOC. Employers are meant to benefit from increased speed of communication and charge processing, reduced physical paperwork, and no lost mail. Employers may also designate a nationwide single point of contact with the EEOC to avoid local managers or others from inappropriately receiving and handling charges.

Be Careful What You Wish For:

However, employers must be aware of the potential downfalls from the electronic system and electronic communication.

Employers may not necessarily gain from speeding up the EEOC investigation and conciliation process. While we all want to “get through” a charge quickly, there may be benefits to a slower paced process. For example, potential claims that were not included in the original charge may become time-barred by a statute of limitations if the charging party fails to file an amended charge.

Secondly, while the EEOC has indicated this is a secure system, employers in this digital age must be cognizant of potential concerns regarding information being uploaded through electronic means – no entity (even the U.S. Government) is immune from data breaches. Thus, participating employers should review what sensitive or confidential information they are uploading and/or redact such information when possible.

Finally, in the future employees may have the  ability to file electronic charges. Currently, a claimant must make the (minimal) effort of actually appearing at an EEOC office or mailing a charge of discrimination. Digitizing the process may allow disgruntled workers to file a charge from their desks or mobile devices immediately after receiving discipline, a sideways look, or hearing a single inappropriate comment. Remember, there are no monetary costs – just time and minimal effort – for an employee to initiate a charge. This digital filing removes all barriers to the worker, which could make impulse decisions to file charges the New Norm. Unfortunately, an employer may not opt-out of this part of the program!

Change Is Coming:

Employers need to be prepared well in advance, including:19261587_s

  • Updating and strengthening workplace policies and handbooks regarding use of electronic devices in the workplace during work time, including who may and may not use computers and mobile devices.
  • Ensuring that supervisors and managers are trained in anti-discrimination/harassment, including how to accept complaints. Don’t forget, some states, like California, mandate such training.
  • Consulting with experienced employment counsel to ensure compliance with federal, state, and local laws – here, the ounce of prevention is worth more than the ton of cure.