Electronically-stored Information

Every April I organize and teach a seminar for other lawyers on E-Discovery: the process of discovering facts important to a lawsuit by examining the other party’s employees’ emails to each other, which frequently reveal corporate knowledge of product defects or other problems relevant to the lawsuit.  As we move closer to a “paperless society,” in which all important information is recorded on computers instead of paper documents, this source of information is becoming more important, especially because people are so much more candid with each other in emails, being under the mistaken impression that emails are confidential and safe from public viewing.

Nothing could be further from the truth.  Emails can be restored from a computer even after they are “deleted,” and become all the more damning when the fact is revealed that the computer owner unsuccessfully attempted deletion, showing that the owner was personally aware of how relevant and how damning the document was.

The landmark case on E-Discovery is Zubulake v. UBS Warburg, LLC, a case brought by Laura Zubulake, whose employer fired her because she was a woman, and who, because of her high annual salary, estimated that her full back-pay and front-pay damages to be $19 million, but because her employer was caught trying to hide incriminatory emails, the total damages increased to $29 million, plus millions more in attorney’s fees and costs.  I suggest that you remember Laura Zubulake whenever you think you are “confiding” something to your computer!  This is especially true of Facebook communications; courts have repeatedly held them to be completely public information, and employers have been found to be justified in monitoring employees Facebook accounts, and using the information found there to justify employee firings.  And when you interview for a job, you should presume that the prospective employer is Googling you and searching Facebook for information about you.

If you have any questions about this or any other matter please give me a call at 610-565-9800..  If you can’t call during regular hours, my home phone number remains 610-565-7712.

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