Our court rules permit discovery of electronically stored information (ESI) where the information sought is relevant to the claims being asserted in the action or any defenses being raised. Millions of dollars and countless hours are spent in e-discovery in litigation cases and the phenomenon of e-discovery is common in almost all employment cases.
As an employee, you may be tempted to use your personal computer or email address or social media accounts in connection with your work, but beware of the dangers ahead! Personal email addresses may lose their “personal” status if they are predominantly used for business purposes. Comments on social media about the company on your “public” accounts may be discoverable and used against you. Text messages, photographs, and emails on your company-issued phone will most certainly be accessed and viewed by your employer.
Senior-level and management employees need to be particularly careful, especially if they have signed a confidentiality/non-disclosure agreement or some other document relating to the use of company-issued devices. The moment that you raise a claim against the company, i.e. through a letter from your lawyer, the company and its IT department will begin examining your emails, texts, and documents, picking through your laptop, your cell phone, and all server information. This is to investigate the scope and strength of your claims and to shore up their defenses thereto. You must presume that all of your communications and all usage of those company-issued devices are now fair play to be used against you. Very quickly, the company will put you on the defensive by arguing that you have somehow violated their internal policies or that communication on social media has cast them in a bad light.
In general, discovery on the plaintiff’s side of the case is relatively low cost, unless you have opened yourself up to ESI discovery. This will necessarily involve an ESI vendor whose costs will run into the tens of thousands of dollars. That case may also morph into requiring ESI experts to prove that you did nothing wrong, another costly venture. While defendants may know that you have not actually done anything to harm them or actually violate the confidentiality provisions, they will use the e-discovery process to wear you down and drive up your litigation costs, in an effort to drive you out of the case. Even without impending litigation, if needed, a company will use the violation of its device or confidentiality policies to justify your termination.
Even if you don’t intend to bring a claim against your employer, you must be very careful about how you use company-issued devices. Make sure you understand the company’s device use policy, the parameters of your confidentiality agreement, and how you are using your phone. Make sure to never use your phone to access your personal email or social media accounts or to transmit or transact any company business. And finally, be very careful about who you “friend” on social media as those eyes may ultimately end up keeping tabs on you once you leave or are fired and bring a claim.