Privacy Issues in the Workplace

2. E LECTRONICALLY S TORED I NFORMATION

Public entities that find themselves parties to litigation should also be wary of those rules of civil procedure that permit discovery of “electronically stored information.”

The Federal Rules of Civil Procedure that may affect information retention and storage policies of public entities. 403 The rules require each party to litigation to conduct an exhaustive search of all electronically stored information “in the possession, custody, or control of the party” and to disclose this information, except for privileged information, “without awaiting a discovery request.” Disclosure is not limited to hard copies of emails or other electronically stored and transmitted information, and may include back-up tapes, employee PCs, and smartphones as well as electronic records of conversations through voice mail, text or instant messaging. While entities are protected from sanctions under the rules for deleting email and other electronically stored information as part of a “routine, good-faith operation,” what constitutes a “routine, good- faith operation” has not been defined under the rules. Similarly, the Electronic Discovery Act (“Act”), including section 1985.8, establishes procedures to obtain discovery of electronically stored information for litigants in California state courts and largely tracks the Federal Rules of Civil Procedure. The Act sets forth procedures for objecting to the specified form or forms of producing the electronically stored information requested by the subpoena. Anytime an entity is sued in federal or state court or has notice of a potential claim, it should preserve all electronic information regarding key player in the case or information that pertains to claims or defenses, or other relevant matter, in the case. The entity’s efforts to preserve this information include disabling the destruction of relevant electronically stored information pursuant to the entity’s document retention policies. The entity should work with its IT department to determine the best manner in which to preserve its electronically stored information. The entity would not be sanctioned if the email or other electronically stored information was destroyed before the entity knew or had reason to know about a lawsuit or claim that required that it preserve that evidence. However, once the entity has knowledge of a claim or lawsuit, it must preserve that evidence; a Court could order evidentiary and/or monetary sanctions against the entity if the electronically stored information is destroyed. 404 Entities whose policies require retention of their electronically stored information for only a short period of time, may find their policies tested under these discovery rules. These entities should revise their policies and allow for a freeze on the destruction of any such information that may be pertinent to the litigation. In addition to freezing the terminating mechanisms on their work computers, public entities should instruct their IT departments to save all backup tapes regarding information stored on and/or produced by key employees in the litigation. Public entities should discuss with their IT departments the best manner in which to preserve their electronically stored information pertaining to litigation. 3. EEOC/DFEH R EQUESTS FOR I NFORMATION Public employers often find themselves presented with requests for employee personnel records by governmental agencies empowered with duties of investigation. The California Department of Fair

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