Managing Electronic Evidence in the Workplace: The Arrival of the Digital Age

By Zachary W. Hoyt

Experts have been predicting the age of the paperless workplace for so long that most of us have likely tuned out the various proclamations and hype. But after decades of prognostication, our digital future has slowly begun to arrive. Many offices are now working primarily through digital means and only producing a paper trail out of tradition. As we have transitioned to a world of smartphones and tablets, our digital footprints have expanded exponentially as we are always connected. According to a study by the International Data Corporation, the amount of data produced in the digital universe is set to grow ten-fold: from roughly 4.4 trillion GB of data in 2013, to 44 trillion GB of data in 2020. This increase greatly expands the amount of material that is potentially discoverable in litigation. This article will help you identify steps you can take to begin to manage this data so that you will be ready to deal with the potential issues as they arise.

Starting at the Beginning – HR Document Storage

The general topic of E-Discovery in the workplace is massive and can be overwhelming. Working through all of these issues will likely involve a multi-disciplinary approach with input from many different departments. But as an HR professional, the easiest place to begin is in your own backyard: properly managing HR records and personnel files.

It is a given in this day and age that most companies store their personnel files digitally. The question you should ask yourself is: how should that information be organized? To ease discovery issues, especially in larger organizations, all HR records and employee data should be stored in a manner that is easy to search and organize for litigation purposes. To prepare for employment litigation, the best practice is to store files in a database that can be filtered into lists of potential comparators. Remember, a comparator is someone that is similarly situated in all relevant aspects. That means that not only should you be able to sort files based on protected characteristics such as race, gender, and age, but also by details such as job title, hiring date, and supervisor. Storing this information will make narrowing down the list of comparator employees significantly easier and save time, effort, and money during litigation.

In addition to learning what to track, it is also beneficial to establish and implement records management practices that dictate how such information is stored. Such practices should include: procedures for the labeling of electronically maintained or retained records; providing a secure storage environment, creating back-up electronic copies, and selecting an off-site storage location; observing a quality assurance program that incorporates regular evaluations of the electronic recordkeeping system, including periodic checks of electronically maintained records and retaining paper copies of any records that cannot be clearly, accurately, or completely transferred to an electronic recordkeeping system.

Managing Internal Investigations Digitally

Whenever you need to conduct an internal investigation, the best practice is to document that investigation as thoroughly as possible. To the greatest extent possible, documentation should be completed during or immediately following the events that triggered the need to document. Further, additional applicable information should be documented as it becomes available. Immediate documentation adds legal credibility and increases accuracy as the events are fresh in one’s mind. An example of this may be when an employer learns of inappropriate behavior of an employee. Communications pertaining to that behavior should be documented and saved, and employers should take care to log each communication pertaining to the inappropriate behavior.

Figuring out exactly what to log can be challenging considering the broad scope of available material. The best practice is to log everything utilized in an investigation. This includes notes from interviews, copies of digital communications such as e-mail or instant messenger logs, and any documents referred to in the investigation. Not only will this ensure thorough, accurate investigations, it will provide a credible document trail and save time on later discovery issues if the problem escalates into litigation.

As mentioned earlier, storing all of this information poses its own potential problems in a digital environment. This is doubly so when handling data regarding sensitive investigations. Human Resources professionals often must utilize and store confidential information in their investigations and their general record keeping tasks. It is extremely important that you have a storage policy in place that limits access to this information to the appropriate insiders, in the same way that paper files were kept confidential in the past. The ease of sharing digital communication can be a double edged sword, and it is critical that HR departments have proper protocols in place to protect employees’ privacy.

One way employers can limit the risks of confidential information being improperly shared is to limit the amount of unnecessary personal information that is stored. Many documents stored by HR contain sensitive information such as Social Security numbers, healthcare and benefits data, and bank account and other financial information. This information is often irrelevant to internal investigations, and it is advisable to redact sensitive personal information from employee records when storing them in investigation files.

Moving Forward

The continued growth of e-discovery and digital documents in general will make having proper document management practices critical. One of the best ways to manage the potentially high cost of e-discovery is to get ahead of things by proactively having proper policies and practices in place. Following the practices outlined in this article will help you get on the right track, but know that this should only be the initial process. Once your house is in order in the HR department, use the lessons you have learned to push for a more holistic, company-wide approach to digital evidence so that when issues arise, you’ll be ready.

Zachary W. Hoyt Ogletree Deakins Memphis zachary.hoyt@ogletree.com www.ogletreedeakins.com

Zachary W. Hoyt
Ogletree Deakins Memphis
zachary.hoyt@ogletree.com
www.ogletreedeakins.com