Is there such a thing as workplace privacy?

DOWNERS GROVE, Ill.—Amendments to the Federal Rules of Civil Procedure went into effect Dec. 1, 2006, requiring employers to retain electronic documentation (including e-mails, instant messages, digital photographs, etc.) under certain circumstances.

These amendments apply to any person, organization or entity involved in a federal civil lawsuit, either as a plaintiff or defendant. The rules are applicable to all employers, including small, public or privately held employers, and do not apply until the time a lawsuit is filed.

Rule 26, which governs the discovery of potential evidence in a civil lawsuit, now requires each party to the lawsuit to turn over, without a specific request from opposing counsel, any electronically stored information that may be relevant to the lawsuit.

It also requires the parties to meet and discuss the retention of electronic information, and to negotiate discovery disputes.

In addition, there is also a procedure within the rule for parties to object to disclosure if the electronic information is not “reasonably accessible” because of undue burden/cost and/or to resist disclosure under certain circumstances.

Rule 37 provides a party can avoid sanctions for the destruction of electronic documentation if the party can show the destruction was the result of “routine, good faith operation” of the electronic system.

A comprehensive understanding of the employer’s electronic documentation storage system is imperative.

First, employers should consult with their information technology department or provider to determine how long documents are stored in their system (including e-mail and documents that are deleted by employees) before being overwritten or purged.

Second, employers should find out how long it would take to retrieve e-mails and other documents if such production were required.

Finally, it is important to find out what capabilities employees have to permanently delete documents and other e-mails.

While the rules only prohibit the destruction of electronic documents once litigation is instituted by an employee or past employee, care should be taken to preserve documents in anticipation of litigation.

Rule 37 specifically states a party is not liable for the deleting of e-mail as part of a “routine, good-faith operation.”

The good faith exception would most likely not protect an employer who knew an employee was considering litigation (i.e., through conversations with the employee, correspondence with an attorney, etc.) and still allowed relevant documentation to be destroyed as part of a routine operation.

No doubt the courts will need to hear a few “test” cases to opine the meaning of good-faith as used in Rule 37.

The Management Association of Illinois, a local employers’ association, will hold a briefing regarding the amendments to the Federal Rules of Civil Procedure Thursday, Feb. 8, from 9 to 11 a.m. The “Workplace Privacy Issues” briefing will focus on issues from the employer’s standpoint, including telephone and e-mail privacy, monitoring employee activities, drug and alcohol procedures, and medical information collection and retention. Interested parties should contact Joy Silverman at (800) 448-4584 or for more information regarding this briefing.

From the Jan. 31-Feb. 6, 2007, issue

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