Electronic discovery in employment discrimination cases.

As employers step more boldly into the computer age, plaintiff lawyers must embolden themselves to conduct more sophisticated discovery.

Discovery that is limited to paper records no longer constitutes adequate client representation. Plaintiff lawyers must track down electronic, or e-mail, evidence, given its prevalence, ease of use, informality, and perceived impermanence. Because e-mail seems to disappear after it is read, senders often memorialize information that, in most cases, would not be written down or distributed in an office memo.(1)

The relatively new legal tool of electronic discovery, or forensic computing, has evolved to accommodate the demands of modern discovery.(2) E-mail and other electronic discovery can be obtained through the defendant's production of specific computer data or through the recovery and reconstruction of information in computer files obtained through discovery.

The Federal Rules of Civil Procedure were amended nearly three decades ago at Rule 34(a) to incorporate within the scope of document production "data compilations from which information can be obtained," thus encompassing computer records.

In 1993, Rule 26(a), which governs discovery, was also amended to encompass "data compilations." The result is that requesting and producing computer records are now essential components of discovery and document production.

To illustrate the importance of electronic records, consider, for example, that a prospective client comes to you with an employment discrimination claim. In describing the workplace environment, she tells you about a series of harassing e-mail messages, one of which was inadvertently sent directly to her computer.

She also tells you that several supervisors spend a lot of work time "surfing the Net" for pornographic sites, which they talk about in front of their employees. At the same time, she suspects that her supervisor has altered computer files to justify discriminatory and adverse employment actions taken against her.

On hearing this potentially valuable evidence--none of which was created or stored as a traditional paper document--your first question may be, "How do I obtain this evidence during discovery?" Then you will be faced with a follow-up question, "How do I use this evidence in litigation?"

E-mail messages may include informal messages between parties, status reports, drafts of documents, records of important meetings or discussions, or records of decisions, including personnel decisions. As a result, e-mail often provides insight into "corporate knowledge and behavior."(3) Given its widespread use and varied application, observers and practitioners alike agree that e-mail may potentially expose a party to significant legal liability.(4)

This article describes what plaintiff attorneys should look for when conducting electronic discovery in employment discrimination eases and how follow-up requests and on-site searches should be conducted. Other areas covered include a brief discussion of special statutory provisions applicable when discovery is requested from the federal government and a review of the admissibility of electronic evidence--both in overcoming hearsay objections and in its authentication.

Nailing down the evidence

Computer files, including electronic mail messages, can be critical for meeting the plaintiff's burden of proving discrimination, retaliation, or a hostile workplace environment. In decades past, derogatory or harassing remarks seldom extended beyond the water cooler, and proving their existence could have sunk into "he said, she said" testimonial conflicts by the parties and their witnesses.

Today, computer records--especially electronic mail--often provide explicit evidence of exactly who said what, when, and to whom. For example, the Southern District of New York relied on a series of sexist e-mail messages, in combination with other evidence, to reject an employer's motion for summary judgment.(5)

Another court held that e-mail concerning the plaintiff's attempts for job advancement created issues of material fact that precluded summary judgment for the employer in an age discrimination suit.(6)

Instead of making a global request for all computer records, lawyers should precisely define their search requests. Narrowing the parameters will be more likely to lead directly to relevant materials and will make it less likely that the opposing parties will file a motion for a protective order or seek sanctions for discovery abuse.

First, interviews with the client and the client's witnesses will often highlight relevant electronic records that are likely to contain probative evidence. This will allow the discovery requests to focus on records by or about specified individuals during a fixed time period and that contain certain words or phrases.

Even if the plaintiff has furnished copies of e-mail messages or other computer records, their evidentiary value will be higher if they can be produced and authenticated directly by the employer.

Second, the initial document production under Rule 26(a) will also highlight areas for further inquiry. The primary goal of the first round of electronic discovery is to obtain as much information as possible about the kinds of evidence that may exist and where in the employer's computer system it might be stored. Counsel should attempt to discover the following:

* computer system configuration, meaning whether the computer containing the hard disk is part of a local area network (LAN), is part of a wide area network (WAN), or is a stand-alone computer;

* type of hardware that houses the hard disk;

* types of operating systems and software that were used on the computer, including the version of the data, and where data is stored, such as on the computer's hard drive, a floppy disk, or magnetic tape;

* types of backup, archival, and security features that operate on the system, including whether electronic information is contained on the memory of peripheral devices such as servers, printer ribbons, and zip drives; and

* whether the employer has a planned purging policy and how and when that policy has been implemented.

This type of discovery may be obtained through interrogatories and document requests or by deposing the employer's representative designated to answer questions about the company's computer system.(7)

Once this information is obtained, requests for specific information may be properly fashioned. After deciding the scope of the discovery request, counsel should ask for copies of all relevant electronic mail messages; the Internet usage records and downloaded files of the defendant's employees; word-processing and other computer data files; and the computer hard drive and network system history.

In addition, counsel should request that the employer suspend all backup and purging operations once litigation has begun, as relevant computer records may be overwritten or otherwise lost. Monique C.M. Leahy, author of a 1997 article on electronic discovery, has prepared a series of model discovery and interrogatory requests that serves as an excellent starting point in preparing for this litigation.(8)

The employer may request a protective order concerning these records, typically to guard against the disclosure of trade secrets9 or attorney-client communications? Since these protective orders probably do not preclude discovery of documents, including e-mail messages, that are relevant to employment discrimination, they should not impede the plaintiff's case.

It is not sufficient merely to request that the employer suspend its computer backup operations once litigation has begun, since that will not address the problems raised by the deletion of computer records before litigation.

These deletions can either be innocuous, as part of the regularly scheduled file backup and purging of deleted files, or deliberate, as an attempt by a defendant supervisor to hide evidence. The latter arises from the naive belief of most computer users that if an e-mail message is not saved, or if a computer file of any kind is "deleted," then it is gone forever.

In fact, deletion of a file merely means that it no longer appears on the directory of the computer or network. The file is still present until some later date when it gets overwritten by another file.(11)

Several altenatives are available if counsel knows or has reason to believe that file deletion or purging may have occurred. First, discovery requests should extend to backup files, not just to the current contents of personal computers and networks. Second, working with data recovery professional specialists may be advisable.

Calling for help

Three firms--Computer ForensiCs, Inc., Electronic Evidence Discovery, Inc., and Ontrack Data International, Inc.(12)--specialize in data recovery, whether from accidental causes, such as viruses or a system failure; routine backup procedures; or deliberate concealment of evidence. They have experience in handling litigation-related issues. Their techniques include recovering deleted files and obtaining information from reformatted hard drives.

Attorneys should avoid attempting to conduct data recovery on their own. Mass market software is available for "undeleting" files, but it may have the unexpected consequence of actually deleting some files from the computer hard drive or network.

One court imposed sanctions when one party had used the Norton "Unerase" program. That program was first copied onto the computer hard drive, thus irretrievably overwriting 7 percent to 8 percent of the information on the hard drive before beginning the data recovery itself.(13)

Another issue that cuts across all kinds of electronic evidence concerns the sources to be investigated. Most large employers have personal computers for individual employees as well as network systems.

This means that discovery requests must extend to the network computer and to related archival systems. Discovery should also extend to employees' laptops and home computers, especially for employees who work in the field or telecommute from home. Finally, incriminating material may be only on diskettes, or even CD-ROM disks, which should be included in discovery requests.

The threshold problem is overcoming the employer's motion to suppress the production of this evidence or to require that the plaintiff bear the costs of generating the relevant e-mail. Courts have recognized that e-mail falls within the scope of federal discovery rules since e-mail is just another form of computer records. Attorneys, therefore, should be able to compel production of relevant e-mail.(14)

One court recognized that since the employer chose to maintain records in electronic storage, the plaintiff should not bear an extra burden in terms of time, effort, and money for conducting computer searches.(15) However, the plaintiff, having requested computer records, may be forced to accept those documents in computerized form instead of as printed copies. The Seventh Circuit allowed an employer to provide a plaintiff with computer access to the requested e-mails instead of printing out 210,000 pages of messages.(16)

Once the employer has agreed or has been compelled to produce e-mail messages, counsel must ensure that sufficiently detailed documents are produced.

A message can be printed out in two different ways: It can come directly from the recipient's e-mail program or be downloaded to the recipient's computer, retrieved into a word-processing program, and then printed out.

Both versions contain the satire text message, but they differ significantly in their "header" information, which represents the lines indicating who sent the message, when, and to whom. The first version has only four lines in the header, corresponding to the traditional four lines of a memorandum. The second version is much more detailed, with many more lines in the header.

However, the second version passes through the recipient's word processor and can be modified in an exculpatory manner. For example, the second version can be back-dated or post-dated, or the text message can be altered.

Thus, counsel will need to determine whether the produced e-mail falls into the less detailed yet potentially more reliable first category, or into the more detailed yet more suspect second category. For this reason, the District of Columbia Circuit held that printed versions of e-mail must "include all significant material contained in the electronic records" to ensure the completeness of the evidentiary data regarding the sending of the e-mail.(17)

Resolution of this problem can be achieved by demanding that all relevant e-mail messages be downloaded to diskettes without further processing by the employer. Lawyers can then retrieve and print the messages through their own firm's word-processing program.

Alternatively, on-site discovery can be conducted by downloading or printing the messages directly from the employer's e-mail system. This allows the plaintiff to have e-mail messages containing fully detailed header information with the assurance that no alteration has occurred.

If there is any remaining doubt, discovery should be obtained from the employer's Internet service provider to determine whether the employer archived the original message.

Often combined with in-house e-mail systems are various calendar and memo programs, which not only allow each user to schedule future events and be reminded of upcoming tasks, but also allow other employees to check the calendar and reminder files of fellow employees.

For example, a secretary may add events to her supervisor's calendar or check the reminder file of a person in another division to see whether her supervisor's requests are included. Copies of these calendar and memo programs should also be requested during discovery.

They may provide evidence that several supervisors met to discuss a certain employee or that a supervisor had something suspect on the reminder program concerning personnel issues.

Caught in the Net

Another area that should be covered in discovery requests is the Internet usage records and downloaded files of the defendant supervisors. Although office Internet systems are intended generally to be used exclusively for work-related purposes, a plaintiff may inform the attorney that a supervisor is "surfing" the Internet for personal purposes in a way that creates a hostile workplace environment or that demonstrates the supervisor's sexist or racist attitudes.

For example, in a sex discrimination case, a supervisor may frequently visit pornographic Internet Web sites, display them to fellow employees, print out or download images, and disseminate these materials in the workplace.

Similarly, a racial or religious discrimination case may involve a supervisor who visits neo-Nazi Web sites. This misuse of the employer's computers may constitute valuable evidence of discriminatory attitudes or a hostile workplace environment.

Although there appears to be no reported case law on Internet usage evidence, this information can be obtained with some effort. It will probably require that the attorney go to the defendant's workplace for onsite discovery.

For instance, many Internet users will "bookmark" frequently visited Web sites so that their computer will have a shortcut listing of the Web site addresses (also known as URLs). These bookmark listings allow the user to click on the address instead of having to type the full address each time the user wants to access that site.

Checking the bookmark listings on a defendant's computer will reveal the addresses of all such sites, which counsel can record and later visit to print out the contents of sexist or racist sites.

Equally important is the "history" of all Web sites accessed from the defendant's computer within a fixed time period, usually within the preceding two weeks. On the Internet browser program Netscape Navigator, typing "Ctrl-H" or clicking on the "History" bar in the Windows directory will reveal all the Web sites recently accessed--potentially a hundred or more --and when they were visited. Counsel should print or record this evidence.

Of course, a defendant may quickly delete all the incriminating bookmarks and Internet history. In this case, the complete absence of these records, when there is testimonial evidence that the defendant frequently visited such sites, would strongly suggest to the court that the defendant had destroyed relevant evidence and may lead to a jury instruction giving this inference.

Electronic bulletin boards, listservs, or other online discussion groups are another relevant source of Internet usage evidence. Most professional online groups (such as Counsel Connect and Cyberia-L) are moderated or are unlikely to have incriminating messages posted by a defendant. But amateur online forums on seemingly every topic imaginable also exist.

If a plaintiff knows or believes that a defendant supervisor participates in a sexist or racist group, discovery should extend to the defendant's posted messages and replies. In some cases, these groups archive all posted messages, so they may be directly available through the group's Web site or electronic bulletin board without having to go through an individual user.

Related to Internet usage are down-loaded files, which may contain racist, sexist, or other derogatory materials relevant to a discrimination case. These files, which often contain graphic material in addition to text, should also be requested in discovery, although the file names may not indicate their nature. Likewise, the user may have renamed the files. It may be necessary to examine all files to retrieve these relevant downloaded files.

Word-processed files

Another discovery area, which overlaps with downloaded Internet files, covers the more general category of computer records, with emphasis on word-processed files. For example, records of meetings or "confidential" or off-the-cuff memos may include evidence directly relevant to a plaintiff's discrimination claims.

Most word-processing programs allow searches of all files on a hard drive or network. Counsel should request searches for all files containing the names (first and/or last) of the plaintiffs, defendant supervisors, and relevant third-party employees, together with any derogatory terms that the plaintiff knows or believes have been used in the workplace.

All computers and diskettes should be searched. In addition, discovery should include requests for information on the "file history"--the creation date for the file and the date it was last modified. This file history can be invaluable in showing that a supervisor altered a computer record in an exculpatory manner.

Another area of discovery concerns the system history of the computer hard drive and the network. Most network systems have a program that documents the history of user activities, both on the network itself and on the individual hard drives of computers on the network.(18)

If this program shows that one user created, altered, or deleted numerous files when a complaint was made, or when litigation began, strong evidence of attempted evidence concealment exists.

Government cases

When the federal government is a party to employment discrimination litigation--as would happen if the plaintiff were a civil service employee--counsel must be aware of special statutory provisions governing requests for computer records from government agencies.

The Freedom of Information Act (FOIA) was amended in 1996 to expressly provide that records in "electronic format" fall within the scope of FOIA, that agencies should search for electronic records, and that they should provide records in the format requested, which could encompass electronic or print copies.(19)

Similarly, the National Archives and Records Administration has promulgated regulations concerning the storage of electronic records, which provide a baseline for judging an agency's response to a discovery request.(20)

Once counsel has conducted electronic discovery and has found all relevant computer records, the next problem is getting this evidence admitted into court. There are two key concerns: overcoming hearsay objections by the opposing party and authenticating the evidence.

The following discussion is based on the Federal Rules of Evidence, but the same general principles should apply to most state court litigation.

Hearsay objections can be overcome by one of several methods. First, if the electronic record constitutes a statement that is made by a party opponent, such as a defendant supervisor, and is offered against that person, then it falls within the Rule 801 (d)(2) "admission by party opponent" hearsay exception.

Second, the evidence may constitute business records or evidence of regular activity, falling within the Rule 803(6) "business records" exception.(21) Finally, if the computer records were generated by the federal government itself, they should be covered by the Rule 803(8) "public records and reports" hearsay exception.(22)

Opposing counsel may also object that these computer records are not relevant to the disputed issues. However, relevancy objections can be overcome by demonstrating that the contents of the records substantiate plaintiff's allegations by making the existence of any consequential fact more or less probable, meeting the Rule 401 definition of relevant evidence. Once relevancy is proven, such evidence is generally admissible under Rule 402.

Once evidence is deemed admissible, it must be authenticated under Federal Rules of Evidence Chapter 9. Computer records, including e-mail, do not fall within the stipulated categories of self-authenticated documents under Rule 902, so they must be authenticated through the authentication of evidence rule, Rule 901.

Although there do not appear to be any reported cases involving the authentication of e-mail, courts have authenticated computerized business records, and it seems probable that e-mail would be treated as just another computer record.(23)

Nonetheless, attorneys should be aware of the possibility of fabricated or altered computer records, especially e-mail messages, since these changes may not be visible on printed copies.

For example, one court found that the chief of personnel at a federal agency had fabricated a reply to another supervisor's e-mail message. The court concluded that his response was prepared "only after he learned that plaintiffs had filed this action claiming age discrimination."(24)

By the same token, the process through which e-mail messages are printed out could itself allow the user to modify the text or the header information.

One commentator has described several incidents where e-mail was altered or where a disgruntled employee accessed a coworker's e-mail account to generate fictitious messages.(25)

Essential investment

While many practitioners handling employment discrimination suits may have some trepidation about embarking on electronic discovery, doing so is essential, given the proliferation of electronic mail and computer use in the workplace. The rewards certainly justify the investment.

Notes

(1.) Heidi L. McNeil & Robert M. Kort, Discovery of E-Mail and Other Computerized Information, ARIZ. ATT'Y, Apr. 1995, at 16; see Matthew Goldstein, Electronic Mail, Computer Messages Present Knotty Issues of Discovery, N.Y.L.J., Feb. 8, 1994, at 5.

(2.) The monthly Journal of Electronic Discovery & Internet Litigation began publication in May 1997 and is available through Pro Se Computing, Inc., [phone], http://www.pro-se-computing.com/.

(3.) Martha Middleton, A Discovery: There May Be Gold in E-Mail, NAT'L L.J., Sept. 20, 1993, at 1, 40.

(4.) See Frank C. Morris Jr., E-Mail Communications: The Next Employment Law Nightmare, CA 30 ALI-ABA 571, 574 (1994); Leon Jaroff, Age of the Road Warrior, TIME, Special Issue: Welcome to Cyberspace, Mar. 22, 1995, at 38.

(5.) Strauss v. Microsoft Corp., 814 E Supp. 1186, 1194 (S.D.N.Y. 1993).

(6.) Young v. State Farm Mut. Auto. Ins. Co., 868 F. Supp. 937, 948-49 (W.D. Tenn. 1994). In contrast, if the plaintiff only presents one or a few discriminatory e-mail messages, the court may not consider this sufficient evidence of pervasive discrimination. Two courts found that one e-mail message, even if combined with several other related incidents, did not create a racially hostile workplace environment. Owens v. Morgan Stanley & Co., 74 Fair Empl. Prac. Cas. (BNA) 876 (S.D.N.Y. July 17, 1997); Harley v. McCoach, 928 F. Supp. 533, 540-41 (E.D. Pa. 1996).

(7.) See generally Monique C.M. Leahy, Recovery and Reconstruction of Electronic Mail as Evidence, 41 AM. JUR. PROOF OF FACTS 3d, 1, 37-45 (1997).

(8.) Id. at 37.

(9.) See, e.g., Quotron Sys., Inc. v. Automatic Data Processing, Inc., 141 F.R.D. 37 (S.D.N.Y. 1992).

(10.) International Bus. Machs. Corp. v. Comdisco, Inc., No. 91-C-07-199, 1992 WL 52143 (Del., New Castle Super. Ct. Mar. 11, 1992).

(11.) Andrew Johnson-Laird, Smoking Guns and Spinning Disks, COMPUTER LAW., Aug. 1994, at 1, 17.

(12.) Computer Forensics, Inc., [phone], e-mail: [e-mail], http://www.forensics. com/; Electronic Evidence Discovery, Inc., [phone], http://www.eedinc.com/; and Ontrack Data International, Inc., [phone], http://www. ontrack.com/.

(13.) Gates Rubber Co. v. Bando Chem. Indus., 167 F.R.D. 90, 112-13 (D. Colo. 1996).

(14.) See, e.g., In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, MDL 997, 1995 WL 360526, at *1 (N.D. Ill. June 15, 1995).

(15.) Id. at *2-3.

(16.) Sattar v. Motorola, Inc., 138 F.3d 1164, 1171-72 (7th Cir. 1998).

(17.) Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1283 (D.C. Cir. 1993) (per curiam).

(18.) Susan E. Davis, Elementary Discovery, My Dear Watson, CAL. LAW., Mar. 1996, at 53, 54.

(19.) Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (Oct. 2, 1996).

(20.) 36 C.F.R. [sections] 1234 (1998).

(21.) See generally Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 FORDHAM L. REV. 2285 (1996).

(22.) The National Archives regulations governing electronic records state that agency electronic records may be admitted under Rule 803(8) and stipulate that agencies should implement specified procedures to ensure this admissibility. 36 C.F.R. [sections] 1234.26.

(23.) Andrew Jablon, Note, "GodMail": Authentication and Admissibility of Electronic Mail in Federal Courts, 34 AM. CRIM. L. REV. 1387, 1400-03 (1997).

(24.) Lumpkin v. Brown, 960 F. Supp. 1339, 1348 (N.D. Ill. 1997).

(25.) Jablon, supra note 23, at 1391-94.

Debra S. Katz is a partner with Bernabei & Katz, a civil rights law firm based in Washington, D.C. Alan R. Kabat, a law clerk with the firm, graduated from Georgetown University Law Center in May 1998.