Are You Safe From Being 'Electronically Discovered?'

Ah yes, the digital age. What hasn’t it given us? Click on a few buttons and you have the world at your fingertips. Open your email account and find friends and colleagues a click away. Want to send your boss that all important email? No matter. Just flip open your laptop or PC and start typing away.

However, this does not mean that you can violate the boundary that separates you and your higher ups. The virtual world offers a degree of discretion when it comes to letting your thoughts known. On the other hand, it’s always best to curb your own enthusiasm when visiting your favorite social networking site or blog. Why? Your organization can have you monitored via electronic information learned from your virtual haunts.

Electronic discovery refers to the discovery of electronic documents like email, web pages, word processing files, and almost anything that can be stored on a PC. These also include technical data and documents if they exist in an ‘electronic’ format like cache memory, magnetic disks like floppies, and optical disks (DVDs and CDs). You might not be surprised to hear how many employers tend to use this ‘convenient’ method to monitor their employees’ activities even outside the workplace.

According to a report released by Duke Law journal, court orders for electronically discovered data have gone through the roof! Sanctions even against counsels are not unheard of. This survey was conducted in December 2010 and took into account 401 federal cases (before 1st January 2010) specifically for electronic discovery violations. The author concluded that there had been a “significant increase in both motions and awards in 2004.”

One of the most famous e-discovery sagas occurred when it was discovered that Qualcomm and a number of its attorneys failed to present thousands of relevant documents during its case against Broadcom. These consisted of emails and files that challenged the former’s position which it then attempted to do a cover up on after these files emerged during the court face off.

In a recent judgment by the court, Qualcomm was held guilty of withholding that large amount of electronic data. The organization was held accountable for failing to search emails that were relevant to the case as well as key witnesses for ‘responsive documents’. The court sanctioned Qualcomm over $8.5 million in damage and also held them guilty for ‘gross litigation misconduct.’

However, e-discovery isn’t easy to trace. Creating complicated files and projects and not to mention meeting that crucial deadline can result in missed production or mistakes. If this virtual tracking system falls short in rooting out the problem or the culprit, many employees and corporations can face the chopping block.

There is some good news though. The average practitioner can rest easy since many courts are now willing to award sanctions for such cases that do not rise to the level of ‘intentional and willful’ behavior. It’s always best to practice caution anyway whenever you feel the need to ‘lament’ your corporate fate online. You just might be the victim of these cyber stalkers yourself.

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