What are the advantages/disadvantages of E-Discovery in employment-related civil litigation?

Lisa Sherman
California Labor & Employment Attorney

E-discovery governs the production of any information in electronic form.  While all litigants are required to abide by e-discovery rules, often times the parties reach agreements on the scope, format and methods in which to preserve, collect, search and product relevant e-discovery.   Below, we address the various advantages and disadvantages of employing full use of e-discovery in litigation matters. 

Advantages:

  • Native production or non-native production formats with fully-searchable load files that provide metadata (information about the data) are immensely important in fact-intensive employment cases.  Production of printed or PDF documents lacks searchability, sortability, and metadata, which is the information about information.  For example, whether an email is authenticate can only be determined by the metadata.  If an email was forwarded to the employee's personal web based account or a competitor, for example, that the employer intends to rely upon for misappropriation of trade secrets claim can only be authenticated by native production, unless the opposing party stipulates, which often will not occur until trial and if not properly collected, opposing party will not stipulate. 
  • Expense and burden to produce ESI and comply with E-discovery obligations as to their limited ESI lies with Plaintiff;
  • Volume of ESI requires all parties to identify ways to limit the scope of discovery, custodians and relevant data.
  • Sanctions may lie against parties and/or counsel for digital data that is withheld, delayed, lost, deleted, destroyed, or no longer viable.
  • Any claims for conversion, unfair competition, misappropriation of trade secrets etc. will likely be supported or refuted by ESI.
  • Damning evidence is almost always found in ESI.
  • Although expensive, it likely brings cases to a head much sooner.
  • ESI can be deleted, but traces typically remain. Deleted data may still exist and be recoverable.
  • ESI modifications will show, for example, the last time the data was opened, accessed, changed, saved, reviewed and/or collected.
  • Discovery disputes are more likely to occur,
  • Hidden metadata can be critical to litigation,
  • Overly burdensome objections where scope of discovery is limited as to time, issues and custodians, in e-discovery requires more than boilerplate objections,
  • In the absence of metadata, ESI may be fraudulent, scrubbing programs used to wipe any metadata, contents of the ESI changed, or any number of actions taken that places the authenticity of a document at issue or the persons who were involved in drafting, reviewing, revising, finalizing and/or modifying it later. 
  • Websites, social media, photographs, recordings, instant messages, texts, emails and internet browser records, for examples, provide significant information,

Disadvantages:

  • It is an expensive process, even when limited in scope, custodians and issues because most companies fail to implement retention policies that reduce the amount of data
  • Company’s IT or other personnel do not properly preserve and employ defensible processes to collect native ESI such that the evidence may be attacked,
  • Preservation of ESI can be challenging, especially when an employer does not have complete control of all its data, 
  • Opposing counsel’s inexperience in e-discovery can cause problems and generate unnecessary expenses,
  • California counsel is required to be e-competent by retaining experienced ESI consultants to guide the process, an additional expense,
  • Damning evidence is almost always found in ESI.
  • Certain programs can destroy residual data,
  • Self-collection and/or marking as responsive by counsel or interested custodians may result in non-production of critical, potentially damning ESI,

The bottom line is that a party seeking ESI may specify the form(s) of production.  Hard copies of ESI ordinarily are not an acceptable form.  Except where metadata is insufficiently important to the factual context of a case, (unlikely to ever be the case in employment matters) counsel should always make reasonable efforts to obtain metadata as part of the ESI.

For more information, feel free to read our additional library articles on e-discovery.  We also invite you to contact our office at (213) 341-4417 if you have any questions.