When we think about the universe of discoverable records during the course of pending litigation, we usually call to mind all of the business records responsive to the other party’s claim.  Most businesses generally assume that the scope of discoverable documents includes only work-related items in the company’s custody: work emails, papers, documents on company workstations and servers, etc. Private emails and files on employees’ own personal devices and home computers, it is often presumed, are beyond the purview of litigation. However, a recent ruling in a Federal case from the Eastern District of New York has potentially upended this assumption, blurring the line between business and personal records and altering the risk calculus of records managers.

In Sunderland v. Suffolk County et. al., Case No. 13-4838 (E.D.N.Y., June 14, 2016), the plaintiff alleged unlawful discrimination by several physicians employed with the Suffolk County Department of Corrections. The plaintiff, who is transgender, brought suit under Federal Civil Rights law, asserting that defendants had intentionally withheld medically necessary hormone treatment while incarcerating her.

During discovery, the plaintiff sought all evidence related to bias or deliberate indifference to gender identity, gender dysphoria, transgender status, and sexual preference. In addition to emails and records in the custody of the Department, plaintiff also filed a motion to compel production of responsive documents kept in the personal computers and email accounts of the physician defendants.

In granting the motion to compel, the court wrote that the physicians’ personal files and emails “may contain information going to bias which may show why a personal computer was used for such communications.” The court did not consider the request “unduly intrusive or burdensome.”

The ruling makes clear that employers cannot assume that the only records subject to eDiscovery are those within their own custody and control. Employees’ personal documents and emails may become discoverable, a fact which cautious employers should note when designing their company-wide records management practices.

Although employers cannot directly control the religious, philosophical, or political beliefs in the hearts and minds of their employees or what they do outside of office hours, but they can set policies and adopt practices targeted towards minimizing their enterprise’s exposure to liability or sanction based on discoverable records in employee custody. Employers should consider...

Read more at: http://www.zasio.com/new-ediscovery-horizons-employee-personal-devices/

Author: Frank Fazzio, Records Analyst at Zasio Enterprises, Inc.