“Data is everywhere and expanding at an exponential rate.”  This truism has been repeated ad nauseum by both the legal community and the public since the turn of the century.  In 2023, almost everyone owns a smartphone, tablet, or a computer.  The creation of electronic records, whether emails, texts, social media posts, photos, etc., is constant and relentless.

This has impacted document discovery in dramatic ways.  Counsel and companies alike have adjusted to this new reality by developing complex approaches to big data, both before, during, and after litigation.  In addition, companies involved in litigation are routinely subject to the collection of their (and their employees’) data during the discovery process. Companies now prepare for largescale litigation by employing effective information governance and retention/destruction schedules, and the Amended Federal Rules of 2015 have allowed for greater flexibility in this area.

Even still, employees working for companies involved in litigation often find themselves shocked to discover that their records and communications may be subject to discovery, leading to multiple challenges once counsel becomes involved and data is to be collected.  It is easy for companies to overlook the opportunity to educate employees as to what happens to their data during the discovery process.  This can lead to consternation and confusion among employees who believed their data were private, ultimately leading to employee dissatisfaction and a less efficient discovery process for all parties involved.

Companies that find themselves in litigation or at risk of litigation should take affirmative steps to ensure that employees are prepared to deal with the consequences that occur once a reasonable anticipation of litigation arises. Part of that effort should involve education of employees on the following basic topics:
 

1. The Life of An Email

Employees should understand what happens to work email that they send and receive, how long it stays on the company’s server, whether it is archived for a specific period even if deleted, whether it is subject to a retention schedule, and what types of messages could be collected and produced during litigation.  This will allow employees to be more mindful when drafting and receiving messages, as well as understanding which of their emails survive, and for how long.
 

2. Text and Instant Message Implications 

Communicating via text and instant messages is now the new normal.  These have overtaken email to become the primary method of communication in people’s personal lives. These methods of communication have also become much more common in business.  Employees are often not aware that these types of communications are subject to discovery, thus leading to a more relaxed and loose approach. Further, employees may be under the mistaken assumption that texts or instant messages sent on their personal devices or accounts may be insulated from discovery, thus leading to relevant information being discussed.  A well-educated workforce will likely be more careful about how text and instant messages are utilized.
 

3. Personal Devices and Services

As discussed above, business communications made on personal devices are often subject to discovery.  Bring Your Own Device (BYOD) policies, in which employees are encouraged to use their own cell phones for business purposes, make this even more of a likelihood.  Employees should know the full risks of using their devices for work, and that their personal information may be collected by counsel for the company when searching for relevant data during discovery.
 

4. Privilege

Training employees on what is protected by the attorney-client privilege can be extremely beneficial should litigation arise.  Employees are often under the impression that any communication with an attorney, or even merely including them in the CC line, is enough to protect a communication from disclosure when this is normally not the case.
Litigants’ control of their employees’ data usage remains a mixed bag, at best.  But steps can be taken to mitigate the issues that may arise during litigation due to employees’ errant communications. A trained workforce will lead to better outcomes during the discovery process, both in litigation as well as in employer/employee relationships.