Ediscovery in the #MeToo Era

In October 2017, dozens of women came forward to accuse Harvey Weinstein of sexual harassment. Since then, hardly a news cycle has gone by without yet another allegation of employment-related misconduct against yet another powerful or well-known man. From Hollywood stars Dustin Hoffman and Steven Seagal to radio host Garrison Keillor, the list of men involved in these cases has been hard to keep up with. Women — as well as a handful of men and transgender individuals — have come forward to share their stories, making the hashtag “MeToo” common shorthand for sexual harassment.

Before the age of social media was fully empowered, similar accusations did not gain the mass exposure or resulting business responses we see currently. In today’s world the employment repercussions to such accusations are often swift and severe. Kevin Spacey was removed from the final season of House of Cards and cut from the cast of a pending movie. CBS fired its news anchor Charlie Rose and PBS canceled his long-running talk show. About a week later, NBC terminated its news anchor, Matt Lauer, concurrently with reporting on an allegation of workplace harassment against him.

Sexual harassment is no longer hiding in the shadows: everyone is talking about it, and it’s not over. The biggest mistake that businesses could make now is to assume glibly that “it can’t happen here.” Odds are that it can, it has and the likelihood of it being reported are increasing. How you respond in the immediate aftermath of a complaint about workplace sexual harassment and other “bad behavior” can have dramatic long-term effects on the health of your organization. (Note that for this discussion, we are focusing not on the truth of an allegation but merely on the fact of an accusation.)

If your organization is struck by an accusation of workplace harassment or other misconduct, your ediscovery response is critical. Your HR department is likely to be responsible for gathering any relevant workplace electronically stored information (ESI) for potential lawsuits and investigations. Will you know what to look for, where to look and who to ask?

Let’s review the key stages of ediscovery that relate to HR’s response to a harassment claim: identification and preservation of ESI.

If your organization is struck by an accusation of workplace harassment or other misconduct, your ediscovery response is critical.

HR Topics Where Ediscovery Matters

  • Employer misconduct
  • Employee misconduct
  • Negligent hiring
  • Negligent retention
  • Wrongful termination
  • Employment discrimination
  • Sexual harassment
  • Bullying or other forms of harassment
  • Creation of a hostile work environment
  • Sexual assault or other assault
  • Verbal abuse or stalking
  • Retaliation
  • Family and Medical Leave Act and other benefits claims
  • Wage and hour issues
  • Whistleblower claims

Identifying Potentially Relevant ESI

Corroborating or disproving the details of events can give an early indication of the direction of an investigation, so start by casting a wide net. When you do, you may be quickly overwhelmed by the universe of different types of evidence that may prove or rebut a workplace harassment claim. Consider, just as a starting point, whether you may be able to identify the following:

  • photos, videos or voice recordings;
  • emails (look for multiple accounts);
  • call logs (again, look for multiple phones that could be used);
  • text messages or instant messages;
  • social media posts from platforms such as Facebook, Twitter, Instagram and others;
  • connected (Internet of Things) devices; and
  • conversations from chat or collaboration applications such as Slack.

For most of these, you’ll want to search for multiple accounts or devices where these types of data may have been generated.

Next, ask where and how the data generated from all these inputs is stored. In addition to looking at personnel records, consider what you might find on work computer systems, personally owned computers, landline and mobile phones, tablets and other mobile devices, surveillance camera backup systems, keycard entry logs and smart devices such as fitness trackers.

As you look for potential types of evidence and evidence locations, use data custodian interviews to identify other sources of data as well as additional custodians.

There’s an added difficulty, however, once you’ve identified potential data types and locations. The subtlety and complexity of language, of harassment itself and of today’s internet shortcuts can make searching for and identifying written harassment startlingly difficult. Context, relationships, slang, inside workplace jokes and emojis combine to create a wide range of potentially harmless — or harmful — interactions.

Preserving ESI

As you’re identifying potentially relevant information, you also need to send out legal hold notices to preserve that information. Because of the nature of workplace harassment, self-preservation by an accused custodian is not recommended. Even more than in other types of litigation, workplace claims such as sexual harassment demand a separation of the accused from the preservation and collection efforts to protect all parties.

Note also that metadata can be particularly important in workplace harassment claims and that merely accessing a file can alter its metadata. Tread lightly and thoroughly document every step you take. Automated ediscovery software will be a huge help in this effort.

There are several potential difficulties here, particularly when it comes to messaging and collaboration applications. Data from these applications can be extraordinarily difficult to preserve and collect. Often, employers don’t know what applications their employees are using to communicate. Who owns the data underlying these messages? Where is that data stored? Is it encrypted in a way that it can be unencrypted and accessed? Free versions of applications often do not retain messages at all or curtail the number of stored messages, and even when messages are saved, exporting from these applications may be impossible.

Tread lightly and thoroughly document every step you take. Automated ediscovery software will be a huge help in this effort.

Avoiding Workplace Claims

The best approach, of course, is to prevent workplace harassment and other HR claims altogether. Emphasizing a culture of compliance and mutual respect is key, as are rapid and sensitive responses to complaints.

Keep a close eye on what applications people are using and eliminate those that generate unwieldy or inaccessible data. Remind everyone that nothing they say or do in the workplace is private.

Most importantly, especially in a world where people prefer texting to talking, train your employees incessantly about the potential permanence of the written word. Before putting anything in writing, we should all reflect on how our words would sound when read aloud in a courtroom or displayed before a jury.

All of this may sound discouraging, but the truth is that the #MeToo movement isn’t a new problem — it’s a new window onto an old problem. It used to be that no one talked about sexual harassment or believed victims when they did talk about it. It used to be that harassment was done quietly or in private, without witnesses who would speak up, usually pitting lower-level employees against the powerful in a battle of credibility.

With today’s technology, we often have evidence that can help us get to the truth of these matters. In that sense, think of your most difficult ediscovery challenges, be they apps or individual messages, as reluctant witnesses. They’re ready to tell you what happened: you just need to draw them out.