This document discusses 10 ways that employers can lose otherwise winnable employment law cases. These include sending reactive emails without thinking, failing to monitor former employees' access after termination, providing inaccurate testimony at unemployment hearings, not taking employee complaints seriously, failing to properly document actions, giving inaccurate performance evaluations, not ensuring important information reaches HR, mishandling EEOC charges, failing to discipline poor performing employees, and mishandling electronic discovery obligations regarding preserving relevant documents and communications. The document provides examples for each way employers can lose cases and recommends best practices for employers to avoid these pitfalls.
Top Ten Reasons Employees Sue Their EmployerPraxiom
Every potential job applicant, employee who enters your workplace, and every former employee who leaves it, represents a potential plaintiff in a lawsuit against your company. This is increasingly true in these difficult economic times. An employee may believe he or she has been discriminated against, harassed, or subjected to retaliation. The employee may just be looking for money - or payback. If your company finds itself in a lawsuit tomorrow, will it be ready to defend its business decisions? In this seminar, Mr. Ussery will discuss the most common factors that motivate employees to sue their employers. More importantly, he will discuss the steps your company can take to defend against liability, if not avoid the lawsuit all together.
An employee's relationship with the company can terminate for many reasons – resignation, reduction-in-force, performance and other work-related reasons. Planning for the departure of an employee, for any of these reasons, can minimize disruption, protect confidential information, avoid litigation and assist with succession planning. Join Polsinelli's Labor and Employment attorneys for the conclusion of our year long Life Cycle of an Employee Webinar series as we discuss issues related to employee terminations, including:
Managing performance and attendance related terminations
Can you terminate whistle-blowers
Exit Interviews
Protecting intellectual property and confidential information
Reductions-in-force and other separation agreements
Post-decision considerations and communications
No HR Staff? 7 Crucial Moves to Master Everyday Employee ManagementComplyRight, Inc.
There's a point when it becomes obvious that a business needs an HR professional on staff. Until then, managing the required recordkeeping tasks, handling questions from employees, and taking proper steps to protect your business from legal risk can seem like a never-ending burden that distracts from other critical business activities. And yet, you can’t afford to ignore these responsibilities.
Take a deep breath! This free webinar will provide practical guidelines for getting HR activities under control, even without an HR specialist on staff. After the presentation, you’ll have solid information to help your business run more smoothly and, most importantly, protect you in the event of an employee lawsuit.
In this insightful webinar, you'll learn:
• Common mistakes to avoid when hiring
• How to create an organized recordkeeping system
• Employee policies every business needs
• The right way to document performance issues
• Why accurate labor law postings are critical
• Steps to prevent a costly harassment claim
• How to use technology to reduce HR overhead
Are you classifying your workers correctly? There are times when you must pay someone as an Employee, and times when you can pay them as an Independent Contractor. Learn the differences so you don't run afoul of IRS rules!
Mpo601 managing people in organisation-01smumbahelp
Dear students get fully solved assignments
Send your semester & Specialization name to our mail id :
“ help.mbaassignments@gmail.com ”
or
Call us at : 08263069601
Mastering Progressive Discipline and Structuring TerminationsPaul Falcone
Understanding the role of progressive discipline (i.e., corrective action warnings) in the employee performance improvement (and, when necessary, termination) process is critical for every manager and supervisor in corporate America. Unfortunately many unsuspecting employers fail to document performance and conduct infractions thoroughly and step perilously into the minefield of employment litigation without the proper record in place. This PowerPoint presentation complements Paul Falcone’s bestselling book 101 Sample Write-Ups for Documenting Employee Performance Problems (AMACOM Books, 2010) as well as the Corrective Action Notice (AKA Written Warning) Template available in Paul’s online Web Store at http://www.paulfalconehr.com/store/. The deck covers the critical areas of classifying infractions, the number of corrective action steps necessary, incident description writing tips, affirmative employer obligations to help rehabilitate the worker, and the importance of drafting consequences “with teeth” that will withstand legal scrutiny in the plaintiff litigation arena. (27 slides)
Presentation developed by author Paul Falcone - www.paulfalconehr.com.
New flexible working laws made easy - a guide for Employers, HR DirectorsThe Legal Partners
To busy to engage with flexible working? Wondering how new flexible working laws will affect your company? Here we explain new flexible working laws, how to respond to flexible working requests, how to make sure you are complying with the new flexible working rules and how be ready for multiple flexible working requests. Pull up a chair..
Top Ten Reasons Employees Sue Their EmployerPraxiom
Every potential job applicant, employee who enters your workplace, and every former employee who leaves it, represents a potential plaintiff in a lawsuit against your company. This is increasingly true in these difficult economic times. An employee may believe he or she has been discriminated against, harassed, or subjected to retaliation. The employee may just be looking for money - or payback. If your company finds itself in a lawsuit tomorrow, will it be ready to defend its business decisions? In this seminar, Mr. Ussery will discuss the most common factors that motivate employees to sue their employers. More importantly, he will discuss the steps your company can take to defend against liability, if not avoid the lawsuit all together.
An employee's relationship with the company can terminate for many reasons – resignation, reduction-in-force, performance and other work-related reasons. Planning for the departure of an employee, for any of these reasons, can minimize disruption, protect confidential information, avoid litigation and assist with succession planning. Join Polsinelli's Labor and Employment attorneys for the conclusion of our year long Life Cycle of an Employee Webinar series as we discuss issues related to employee terminations, including:
Managing performance and attendance related terminations
Can you terminate whistle-blowers
Exit Interviews
Protecting intellectual property and confidential information
Reductions-in-force and other separation agreements
Post-decision considerations and communications
No HR Staff? 7 Crucial Moves to Master Everyday Employee ManagementComplyRight, Inc.
There's a point when it becomes obvious that a business needs an HR professional on staff. Until then, managing the required recordkeeping tasks, handling questions from employees, and taking proper steps to protect your business from legal risk can seem like a never-ending burden that distracts from other critical business activities. And yet, you can’t afford to ignore these responsibilities.
Take a deep breath! This free webinar will provide practical guidelines for getting HR activities under control, even without an HR specialist on staff. After the presentation, you’ll have solid information to help your business run more smoothly and, most importantly, protect you in the event of an employee lawsuit.
In this insightful webinar, you'll learn:
• Common mistakes to avoid when hiring
• How to create an organized recordkeeping system
• Employee policies every business needs
• The right way to document performance issues
• Why accurate labor law postings are critical
• Steps to prevent a costly harassment claim
• How to use technology to reduce HR overhead
Are you classifying your workers correctly? There are times when you must pay someone as an Employee, and times when you can pay them as an Independent Contractor. Learn the differences so you don't run afoul of IRS rules!
Mpo601 managing people in organisation-01smumbahelp
Dear students get fully solved assignments
Send your semester & Specialization name to our mail id :
“ help.mbaassignments@gmail.com ”
or
Call us at : 08263069601
Mastering Progressive Discipline and Structuring TerminationsPaul Falcone
Understanding the role of progressive discipline (i.e., corrective action warnings) in the employee performance improvement (and, when necessary, termination) process is critical for every manager and supervisor in corporate America. Unfortunately many unsuspecting employers fail to document performance and conduct infractions thoroughly and step perilously into the minefield of employment litigation without the proper record in place. This PowerPoint presentation complements Paul Falcone’s bestselling book 101 Sample Write-Ups for Documenting Employee Performance Problems (AMACOM Books, 2010) as well as the Corrective Action Notice (AKA Written Warning) Template available in Paul’s online Web Store at http://www.paulfalconehr.com/store/. The deck covers the critical areas of classifying infractions, the number of corrective action steps necessary, incident description writing tips, affirmative employer obligations to help rehabilitate the worker, and the importance of drafting consequences “with teeth” that will withstand legal scrutiny in the plaintiff litigation arena. (27 slides)
Presentation developed by author Paul Falcone - www.paulfalconehr.com.
New flexible working laws made easy - a guide for Employers, HR DirectorsThe Legal Partners
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Human Resource Management, Ethics, Organizational CultureSumbal Noureen
Ethics and Employee rights and discipline
Ethics and fair treatment
Individual and organizational factors
Culture
HR methods to promote Ethics
Managing dismissal
Termination interview
Michael Cosgrove from Workplace Laws discusses:
- Steps to prevent workplace bullying
- The process of dealing with workplace bullying after it occurs
- Legal frameworks, resources available for businesses and options for employees to have their workplace bullying issues dealt with effectively
Cover your workplace with LawPath's Workplace Policies Bundle: http://bit.ly/1AFe9VM
LEG 500 Assignment 1 Employment-At-Will Doctrine
LEG 500 Assignment 2 The Value of Digital Privacy in an Information Technology Age
LEG 500 Assignment 3 Employment-At-Will Doctrine
LEG 500 Assignment 4 Products Liability Research Paper
LEG 500 Week 8 Quiz
LEG 500 Assignment 1 Employment-At-Will Doctrine
LEG 500 Assignment 2 The Value of Digital Privacy in an Information Technology Age
LEG 500 Assignment 3 Employment-At-Will Doctrine
LEG 500 Assignment 4 Products Liability Research Paper
LEG 500 Week 8 Quiz
Initial Post 4801 Unit 2 D1Hi Class, Ethics of Workplace Priva.docxjaggernaoma
Initial Post 4801 Unit 2 D1
Hi Class,
Ethics of Workplace Privacy
Employees are protected by the law against arbitrary searches by employers and infringement on their privacy. However, the employer has the right to search without requesting the employee. However, this action is only applicable whenever the employer is inspecting the items belonging to the company such as the employee’s locker or car. If the vehicle belongs to the employee, the employer has no right to search. Otherwise, that will be considered as an invasion of the worker’s privacy.
An employer has the right to watch a nanny’s behavior whenever the nanny is on the employer’s premises and taking care of the employer's children. The employer has a right to listen in to the phone calls and messages of the nanny, as long as the phone being used belongs to the employer. The employer can read the emails of the nanny, force the employee to take a drug test to ensure the employee is not drugging the kids or acting under the influence of narcotics.
However, it is not allowed for the employer to install security cameras in sensitive places such as bathrooms or toilets. These cameras can be installed in public places such as kitchen, living room or in the yard. The employers are allowed by the law to have these cameras in such public places. The employer should however not invade the privacy of the employees.
References
Berenbeim, R. (1990). Employee privacy. New York, N.Y.: Conference Board.
Espejo, R. (2011). Privacy. Detroit: Greenhaven Press.
Lane, F. (2003). The naked employee. New York: AMACOM.
Initial Post 4801 Unit 2 D2
Hi Class,
Whistleblowing
Whistleblowing is a process where an employee communicates on non-ethical issues done in an organization. One of the real life experience I had had of whistleblowing when a fellow employee in a bookstore I was working in who had been denied leave for over five years decided to report the act to the worker’s union. This action prompted a harsh reaction from the union which gave the management of the bookstore an ultimatum within which it should have provided a list of the dates its employees are scheduled to go for leave.
Also, the union streamlined other issues within the workplace besides the granting of leave to employees. Before this time, I felt the pressure to express my despair since I was also expecting to get a leave but was afraid that would cause trouble between my employer and me.
In the years before 2013, the Bank of America was accused of getting rid of employees it suspected would blow the whistle. This came as a result of the great fraud that was taking place in the company which posed the danger that if notice, the bank would be closed or face different serious legal battles. Edward O’Donnell was one of the whistleblowers who led the court into gathering enough evidence about the shoddy mortgage deals that the Bank of America was undertaking.
The whistleblower was awarded $57 million for his act. As much as.
After readingwatching the resources below, address the following re.docxmilissaccm
After reading/watching the resources below, address the following requests:
▪
For each example, identify the gender and approximate age of the employee and his or her supervisor who handled the disciplinary issue.
▪
Briefly describe the background of the disciplinary issue.
▪
Identify which steps of the disciplinary process that were followed, omitted, or done poorly.
▪
Identify the outcome of the situation—discipline issue was resolved and employee stayed employed at the organization, employee was discharged, etc.
Resources:
Teen Behavior Isn’t Just in High School; It’s Also at Work
Whining, tattling and tantrums are just a few of the ‘adolescent’ behaviors employees say they have seen from colleagues
By Dana Wilkie
8/25/2015
Whining. Pouting. Tattling. Throwing tantrums. Refusing to share. Making a face behind someone’s back. Sound like preschool?
It’s actually what CareerBuilder calls “adolescent” behaviors in the workplace, and according to the company’s recent survey, 3 in 4 workers report that they’ve witnessed such childishness among co- workers.
The survey, conducted by Harris Poll, canvassed 2,532 hiring and human resource managers and 3,039 employees between May 14 and June 3, 2015. It has a margin of error of plus or minus 1.95 percentage points for the managerial pool and plus or minus 1.78 percentage points for the employee pool.
“Some degree of what we may consider ‘adolescent’ conduct can be harmless, enabling employees to let off some steam and even promote a sense of camaraderie in the office,” said Rosemary Haefner, chief human resources officer at CareerBuilder. “But ... actions like spreading rumors, tattling and forming cliques to exclude others can be perceived as mean-spirited, bullying and even harassment.”
Top 10 Adolescent Behaviors in the Workplace
When asked which childlike behaviors they’ve seen colleagues display at work, respondents gave the following answers:
1.
Whining (55 percent say they have seen this).
2.
Pouting over something (46 percent).
3.
Tattling on a co-worker (44 percent)
4.
Playing a prank on a co-worker (36 percent).
5.
Making a face behind someone’s back (35 percent).
6.
Forming a clique (32 percent).
7.
Starting a rumor about a co-worker (30 percent).
8.
Storming out of the room (29 percent).
9.
Throwing a tantrum (27 percent).
10.
Refusing to share resources with others (23 percent).
Real-Life Examples
Respondents gave Harris Poll real-life examples of the childish behavior they had witnessed, including: • A company owner who threw tantrums, yelled and slammed doors when he didn't get his way.
·
An employee who hid to avoid work duties.
·
Workers who ate other employees’ food from the company refrigerator.
·
Someone who blocked parking spots to prevent other employees from parking closer to the front
door.
·
Someone who gossiped about all of his direct reports, then pretended to be their advocate.
·
A worker who continually pulled up inappropriate.
1 P a g e Teen Behavior Isn’t Just in High School; I.docxhoney725342
1 | P a g e
Teen Behavior Isn’t Just in High School; It’s Also at Work
Whining, tattling and tantrums are just a few of the ‘adolescent’ behaviors employees say they have
seen from colleagues
By Dana Wilkie
8/25/2015
Whining. Pouting. Tattling. Throwing tantrums. Refusing to share. Making a face behind someone’s back.
Sound like preschool?
It’s actually what CareerBuilder calls “adolescent” behaviors in the workplace, and according to the
company’s recent survey, 3 in 4 workers report that they’ve witnessed such childishness among co-
workers.
The survey, conducted by Harris Poll, canvassed 2,532 hiring and human resource managers and 3,039
employees between May 14 and June 3, 2015. It has a margin of error of plus or minus 1.95 percentage
points for the managerial pool and plus or minus 1.78 percentage points for the employee pool.
“Some degree of what we may consider ‘adolescent’ conduct can be harmless, enabling employees to
let off some steam and even promote a sense of camaraderie in the office,” said Rosemary Haefner,
chief human resources officer at CareerBuilder. “But … actions like spreading rumors, tattling and
forming cliques to exclude others can be perceived as mean-spirited, bullying and even harassment.”
Top 10 Adolescent Behaviors in the Workplace
When asked which childlike behaviors they’ve seen colleagues display at work, respondents gave the
following answers:
1. Whining (55 percent say they have seen this).
2. Pouting over something (46 percent).
3. Tattling on a co-worker (44 percent)
4. Playing a prank on a co-worker (36 percent).
5. Making a face behind someone’s back (35 percent).
6. Forming a clique (32 percent).
7. Starting a rumor about a co-worker (30 percent).
8. Storming out of the room (29 percent).
9. Throwing a tantrum (27 percent).
10. Refusing to share resources with others (23 percent).
Real-Life Examples
Respondents gave Harris Poll real-life examples of the childish behavior they had witnessed, including:
• A company owner who threw tantrums, yelled and slammed doors when he didn't get his way.
2 | P a g e
• An employee who hid to avoid work duties.
• Workers who ate other employees’ food from the company refrigerator.
• Someone who blocked parking spots to prevent other employees from parking closer to the front
door.
• Someone who gossiped about all of his direct reports, then pretended to be their advocate.
• A worker who continually pulled up inappropriate content on her cellphone and showed it to her
colleagues.
A separate CareerBuilder survey conducted earlier in 2015 found that some adolescent behaviors can
reduce an employee’s chances of being promoted, including:
• Negativity: A majority of employers (62 percent) said they’re less likely to promote workers who
have a negative or pessimistic attitude, which can be demonstrated through whining and pouting.
• Vulgar language: More than half ...
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Hearing - How to lose an unloseable employment law case
1. By: Gregory A. Hearing, Esq. Thompson, Sizemore, Gonzalez & Hearing, P.A. [email_address] (813) 273-0050 How to Lose An Unloseable Employment Law Case
2. One plaintiff’s attorney lists the following in his Top Ten ways to win an employment law case: “ 4. Choose a case with defective/inept human resource department . Look for a case with a bad human resource administrator or defective discrimination/retaliation policy that is not actually implemented, (a "paper HR policy"). Such improper handling of known acts of discrimination in the work place combined with acts of retaliation against employees who complain of discrimination make for good damage awards. I call these inept HR administrators ‘ dinosaurs ’. . . .” Source: McGovern, Glenn C., My Top 10 Ways to Win An Employment Case , Law Office of Glenn C. McGovern Metairie, La, http://www.glennmcgovern.com/CM/Custom/My-Top-10-Ways-To-Win-An-Employment-Case.asp. H.R. From A Plaintiff’s Perspective
6. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails
7.
8.
9. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions
10. Surefire Ways to Lose Unmonitored Post-Termination Employee Actions Employers must monitor employees after they are terminated. Terminated employees may access, alter, or delete documents that may be critical for proving an employer’s defense to claims by a former employee.
11. Surefire Ways to Lose Unmonitored Post-Termination Employee Actions Illustration: An employee is terminated from his managerial position after violating the company’s anti-solicitation policy. After termination, the employer does not cut off the employee’s access to relevant documents pertaining to solicitation activities. The employee deletes/destroys significant documents, including e-mails, and .pdf’s, pertaining to the solicitation issue. The employer does not have copies of pertinent files used in the decision to terminate the employee.
12.
13.
14. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony
15. Surefire Ways to Lose Unemployment Hearing Testimony Unemployment hearings, if taken lightly, may come back to haunt employers in a later lawsuit filed by an employee who previously sought unemployment compensation. Witness testimony during unemployment hearings is sworn testimony that may be used in a subsequent case. Employers can lose a case through one sentence in an unemployment hearing transcript. Employers must adequately prepare witnesses. Do not take the unemployment hearing lightly.
16. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously
17.
18.
19.
20. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions
21.
22. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations
23.
24. Surefire Ways to Lose Inaccurate Performance Evaluations Illustration : An employee is not performing her daily assigned tasks. The employee’s supervisor discusses the problem with the employee and places the employee on a Performance Improvement Plan (“PIP”). The employee shows very little progress on the PIP. Instead of issuing a negative performance evaluation, the supervisor gives the employee a positive evaluation as a “motivating” strategy. The employee’s performance continues to decline and the supervisor terminates the employee. The employee later brings an age discrimination claim, and points to the positive evaluation to show she was performing satisfactorily and to prove discriminatory animus. The POINT: complete performance evaluations accurately!
25. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals
26. Surefire Ways to Lose Information Does Not Reach Appropriate Individuals An H.R. department must stress to all managers and supervisors the importance of reporting employee requests/complaints/issues to appropriate individuals in the H.R. department. Without funneling such information to H.R., the employer cannot address an employee’s request/complaint/issue. Thus, an issue that could have been addressed easily flies under the radar until it later surfaces as a lawsuit.
27. Surefire Ways to Lose Information Does Not Reach Appropriate Individuals Illustration : An employee mentions to his supervisor that he believes he has a disability and needs an accommodation. The employee fills out an accommodation request form and provides it to the supervisor. The supervisor, who is constantly busy, forgets to forward the request to H.R. The accommodation would have been relatively simple to provide, but the employee does not receive it. The employee later brings an ADA suit against the employer based on its failure to accommodate.
28. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC
29. Surefire Ways to Lose Mishandling the EEOC An employer’s decision not to respond to a charge of discrimination filed with the EEOC or other state agency may prevent an employer from easily disposing of a case. Providing a sound position statement often results in no action by the state agency or EEOC, causing the would-be-plaintiff to “go away.”
30. Surefire Ways To Lose Mishandling the EEOC Employers must verify that the statements and facts set forth in a position statement are accurate and supported by evidence. Where the statements in a position statement are later recanted/changed by an employer, or are eventually disproven through discovery, a plaintiff will often rely on these inaccuracies to show pretext in a discrimination suit. Don’t let an employee argue: “You said I was fired for tardiness in your position statement, now you’re saying it was because I was drinking on the job. Clearly, your change of position shows that you did not have a legitimate non-discriminatory basis for firing me.”
31. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC 9. Failure to Discipline Employees
32. Other Surefire Ways to Lose . . . Failure to Discipline Employees Poor performers cause more than just productivity problems. As mentioned previously, inexperienced or untrained managers often dread the difficult task of confronting poor performers and explaining their shortcomings as employees. Failing to discipline an employee can create unanticipated consequences for employers.
33. Surefire Ways to Lose Failure to Discipline Employees Don’t give an employee a basis to challenge an adverse employment action by saying: “ I have been doing it that way for 20 years and no one said it was wrong. What changed?” “ I had no idea I wasn’t doing a good job.” Trying to be a “nice boss” or “letting the small stuff slide” may turn an otherwise defensible case sour. Remember the saying, “No Good Deed Goes Unpunished.”
34. Other Sure Fire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC 9. Failure to Discipline Employees 10. E-Discovery/Spoliation
35. Electronic Discovery* With the rapid introduction of technological advancements over the last two decades, the practice of law has changed substantially. Electronically Stored Information (“ESI”) and electronic discovery are quickly becoming normal and routine issues in civil cases. Think about it : Almost everyone uses a computer at work and most documents/information now originate as electronic documents. *For an in-depth review of the e-discovery issues discussed in this presentation, see Jeffrey J. Fowler & William H. Dance, Preserving Electronically Stored Information: A Practical Approach , BNA’s E-Discovery Portfolio Series, No. 3 (2007).
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40. E-Discovery Spoli what? E-Discovery and the applicable procedural rules/case law regarding e-Discovery have changed the way litigation is conducted and the obligations imposed on litigants regarding preservation of ESI. Litigants who fail to “follow the rules” or take the necessary actions to preserve ESI can be sanctioned for “spoliating evidence.” Spoliation : 1) The intentional destruction, mutilation, alteration, or concealment of evidence, usually a document; 2) The taking of a benefit properly belonging to another (Black’s Law Dictionary, 9th ed. 2009). Spoliation is a serious matter .
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44. Electronic Discovery Case Illustrations Strasser v. Yalamanchi , 783 So. 2d 1087 (Fla. 4th DCA 2001) (an appropriate remedy for destruction of a hard drive containing relevant ESI includes instructing the jury of the pre-trial discovery conduct of the offending party ). 2. Entry of default/dismissal Gillett v. Michigan Farm Bureau , 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (plaintiff in a sexual harassment case admitted he deleted potentially relevant e-mails prior to filing the case. As a sanction for spoliation, the court dismissed the plaintiff’s case ). Krumwiede v. Brighton Associates, L.L.C. , 2006 WL 1308629 (N.D. Ill. May 8, 2006) (plaintiff’s destruction of data amounted to spoliation. Computer experts analyzed the plaintiff’s computer and found that the plaintiff performed maintenance, including defragmentation, on the computer after the court issued a preservation order. The court held that the actions constituted a willful attempt to frustrate discovery, entered a default judgment against the plaintiff , and awarded the defendant attorney’s fees and costs ).
45. Electronic Discovery Case Illustrations 3. Shifting Evidentiary Burdens Coleman Holdings, Inc. v. Morgan Stanley & Co., Inc. , 2005 WL 679071 (Fla. 15th Cir. Mar. 1, 2005) (holding that defendant spoliated evidence by overwriting e-mails when it had knowledge of litigation. As a sanction, the court shifted the burden of proof on the issue of fraud to the defendant ). 4. Denying Prevailing Party Attorney’s Fees Broccoli v. Echostar Communications Corp. , 229 F.R.D. 506 (D. Md. 2005) (Involving breach of contract claims and sexual harassment claim. Jury found for the plaintiff on the contract claim, but not on the sexual harassment claim. Post-trial, the judge refused to award defendant attorney’s fees on the sexual harassment claim, reasoning that the defendant’s spoliation of evidence led to the plaintiff’s loss of the sexual harassment claim).
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51. Electronic Discovery Satisfying the Duty to Preserve Once a duty to preserve is established, courts provide guidance on what employers must do to meet the duty: I) First, the party (and the party’s counsel) must “ become fully familiar with the client’s document retention policies” and “ speak with ‘key players’ in the litigation” to understand how ESI is stored.” Zubulake v. UBS Warburg , 229 F.R.D. 422 (S.D.N.Y. July 20, 2004).
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59. Electronic Discovery Litigation Hold Sample Portion of a Litigation Hold: MANDATORY DOCUMENT RETENTION NOTICE This notice suspends the Company’s general Document Retention Policy & Procedures concerning all documents described below, which must be retained in connection with the matter John Doe v. The Company. The Company is implementing a mandatory document retention requirement to preserve documents that may be relevant or related to this matter. Please review this memorandum carefully and adhere to the mandatory document retention policy outlined herein. This notice supersedes any other Document Retention Notice received regarding this matter.
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65. Gregory A. Hearing, Esq. Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 N. Franklin Street, Suite 1600 Tampa, FL 33602 [email_address] (813) 273-0050