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Legal Issues re: Electronically Stored Information

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Legal Issues re: Electronically Stored Information Legal Issues re: Electronically Stored Information Presentation Transcript

  • Matthew D. Austin, Esq. matt.austin@btlaw.com (614) 628-1409 Dangers and Best Practices of Living in The Electronic AgECONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Today’s Roadmap • Proliferation of Electronic Media at Work • What is ESI • What are ESI rules • Compliance with ESI rules • Best Practices to Minimize Cost/RiskCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • How Have Electronics Taken Over Our Work Life E-Mail Voicemail to Email E-Reader Social Media E-Billing Smartphones E-Payment TelecommutingCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity otherthan the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed aslegal advice or a legal opinion of Barnes & Thornburg LLP.
  • Proliferation of Social Media http://socialnomics.net/video/CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • How Can These Create Smoking Guns for Lawsuits • Nothing is gone forever • Everything done on computers can be subpoenaed and reviewed • Courts are allowing unprecedented access to Electronically Stored Information • Companies should create and follow ESI policiesCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Symantec Statistics June 2010 based on 1680 senior IT and legal executives in 26 countries. Infinite retention results in infinite waste Highlights why proper deletion policies and efficient search capabilities are critical 87% Believe proper retention strategy 46% Have formal information retention plan in place 75% Backup storage consists of infinite retention 25% Data backed up is not needed for business or should no be backed up 40% Data placed on legal hold is not relevant for that litigation 50% Improperly using backup and recovery software for archiving 51% Prohibit employees from creating their own archives on local machines 65% Admit employees regularly create their own archives on local machines 41% IT Administrators don’t see a need for a document retention plan 29% IT Admins said cost was the main reason for no document retention plan 58% Legal said cost was main reason for no document retention plan 48% Legal said lack of experience reason no document retention plan 1500% More expensive to review data than to store itCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Example of a Typical Lawsuit • Harassment or Discrimination Suit – He said/she said situation – P’s attorney must prove ABC – P’s attorney will want to see XYZ • Breach of Construction Contract – Which side didn’t do what they were supposed to do – P’s attorney must prove ABC – P’s attorney will want to see XYZCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Anatomy of a Lawsuit • Complaint (or Charge) is Filed • Answer is Filed • Written Discovery Begins – Even in arbitration • The Duty to Retain ESI – “Litigation Hold” – Failure to preserve may be gross and/or reckless negligence with stiff penaltiesCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Request for Production of Documents • Plaintiff will want to see everyone’s – Computers (both work and home) – Cell phones (both work and home) – Emails (both work and home) • Defendants may have to provide access – Not overly broad request – Tailored to issues in disputeCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Must Turn Over Some Things Before Request for Documents is Made “A party must, without awaiting a discovery request, provide to the other parties …a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” (Fed. R. Civ. P. 26(a)(1)(A)(ii))CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What ESI Must Be Produced “Any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonable useable form.” (Fed. R. Civ. P. 34(a)(1)(a))CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • How Must ESI Be Produced • If no specification, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and • A party need not produce the same electronically stored information in more than one form.” (Fed. R. Civ. P. 34(E)(i)-(iii))CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About Mirror Images of Hard Drives • Forensic duplicate • Parties negotiate search protocol • Computers made available to expert • Expert will release a report to the parties’ counsel regarding the finding of its inspectionCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Can Opposing Side Copy an Entire Hard Drive • Defendants sought relief from order to inspect through forensic imagining the entire hard drive of work and home computers of 50 key custodians. • Discovering party was not specific enough why mirror imagining was required. • “Mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” • That wide of net assured confidential information unrelated to the litigation would be exposed. John B. v. GoetzCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Slight Modification for Ohio Courts • Parties can mandate the form that ESI is produced Example: The party propounding discovery seeking electronically stored information could request that a party’s internal memorandums on a particular subject be produced in Word format, while financial records be provided in an Excel spreadsheet format or other commonly used format for financial information.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About ESI From Non-Parties • Not if it imposes undue burden or expense. • The person from whom ESI is sought must show that the information is not reasonably accessible because of undue burden or expense. • Court may still order production of ESI if the requesting party shows good cause. • The court may specify the format, extent, timing, allocation of expenses, and other conditions for ESI. (Ohio R. Civ. P. 45(D)(3))CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Who Pays For ESI Production Zubulake gave us the 7-Factor test for who pays 1. Extent the request is specifically tailored to discover relevant information 2. Availability of information from other sources 3. Total cost of production compared to amount in controversy 4. Total cost of production compared to resources of each party 5. Relative ability of party to control costs and its incentive to do so 6. Importance of the issues at stake in the litigation 7. Relative benefits to the parties of obtaining the informationCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What is Spoliation • The destruction of relevant evidence before either side can see it • Nearly impossible to destroy ESI, and attempts to do so are easily uncovered Leon v. IDX Sys. Corp. Nucor Corp v. Bell Connor v. Sun Trust BankCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Spoliation (continued) • Preservation Duty applies even if litigation is not imminent KCH Services, Inc. v. Vanaire, Inc.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Spoliation (continued) • Spoliation can occur even when preserving documents if you change the format of the document. The downgrading of an electronically searchable document to a .pdf was considered spoliation. In re Classicstar Mare Lease Litig. The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. The information should not be produced in a form that removes or significantly degrades this feature.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About Metadata • Metadata is “data about data” • Technically, it’s “information about a particular data set that describes how, when, and by whom it was collected, created, accessed, or modified and how it is formatted” • Not addressed in the rules that govern discovery • Presumption against discoverability • Compelled when party can show relevance Sanchez v. Bland Farms May be used for Prevailing Wage calculations?CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About GPS • GPS can be key evidence as it can establish the whereabouts of a party which may be determinative of factual disputes regarding and person’s whereabouts. Bicking v. Deiter BrothersCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Internal Threats of Data Security • ESI easily transmitted outside company – Disgruntled employees – Corporate spy – Unsecured Access Point – Trade secret theft • Social media makes this a common, everyday occurrenceCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About Social Network Sites • Ledbetter v. Wal-Mart (Good for Employers) Plaintiffs were injured while performing electrical work in a Wal-Mart store for their employer and sued Wal-Mart. They claimed to suffer ongoing and permanent physical and psychological injuries, and one of their wives brought a consortium claim. Wal-Mart subpoenaed social networking sites. Physician-patient and marital privilege claims were asserted, but the court enforced the subpoenas. • Williams v. Wells Fargo (Good for Employees) Plaintiff filed race discrimination suit after being fired for violating information security and sexual harassment policies when he sent emails containing sexually suggestive jokes and picture attachments. Plaintiff won because he showed that Wells Fargo did not terminate white employees engaging in the same conduct after searching several MySpace pages.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About Privacy on an Employer’s Electronic Equipment • Generally no right to privacy for files and emails on employer’s equipment when employer has and enforces a policy telling the employee no such right to privacy exists. • However, emerging case law holds that an employees may still have an expectation of privacy regarding attorney-client privileged communications even if they are made on an employer-provided computer or computer system and the employer has a monitoring policy.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • What About Privacy on an Employer’s Electronic Equipment (continued) • Stengart - Email to attorney on company-issued laptop computer through the former employee’s personal, web-based email account is confidential • Curto - Employer with e-mail monitoring policy went too far when it accessed emails an employee had sent to her attorney while working at home via her company-issued laptop computer. Employee had reasonable expectation of privacy where she sent email using a personal web-based email account which did not go through employer’s server • Kaufman - Employee waived attorney-client privilege by sending emails to her attorney on company email system where company policy clearly notified all emails on company system were subject to monitoring, searching, or interception at any time.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Examples of ESI Litigation I Have Been Involved In • State of Indiana v. IBM • Lusby v. Rolls Royce Corp. • The Sandel Corp. v. Int’l Assoc. of Heat and Frost Insulators, Local 50CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Trending Corporate ESI Strategies • Reactive • Disconnect with running business – CFO/GC has to fund it, CEO has to run business – View ESI strategy as optional insurance policy – No tangible value to risk mitigationCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • ESI / Data Retention Policy • Absent ongoing destruction of unnecessary ESI pursuant to policy, the cost of locating and retrieving ESI for litigation can be extraordinarily high • Litigation holds often go back as far as documents are available – I’m currently involved with one going back to 1987 – Several computers, formats, etc. • Risks and cost of reviewing documents that should no longer existCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Good v. Bad ESI / Data Policy • Good Policy: – Know where data is stored – Control how it is accessed – Strategy to locate only relevant records when request is made • Bad/No Policy: – Increases complexity, chaos, cost, and reduced productivityCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Reasons Not to Purge All ESI • Should keep some ESI readily available – Pursuant to records management or retention policy – Compliance with laws and regulationsCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Are You Confused on What to Do • Retain a few weeks of backup (30-60 days); then delete or archive data in an automated way • By using backup only for short-term or disaster recovery purposes, companies can backup and recover faster while deleting older backup sets within months instead of years. This results in a vast amount of storage that can be confidently deleted or archived for long-term storage. • Implement deduplication everywhere • Develop and enforce information retention policies (what can and cannot be deleted, and when). Automated, policy-driven deletion creates less risk than ad-hoc, manual deletion.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Practical Guidelines for Searching Employees’ Stuff • Develop and distribute a company policy clearly stating that the company reserves the right to search an employee’s belongings, work station, computer, locker, and other work-related areas. – Be careful not to appear implementation is retaliation • A well-publicized policy will weaken an employee’s argument that he or she had a reasonable expectation of privacy.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Practical Guidelines for Searching Employees’ Stuff • Conduct a thorough investigation before searching the employee or his/her work area or belongings – Includes directly communicating with the person who accused/suspected the employee of wrongdoing. – Includes questioning the suspect • Keep track of the investigation to demonstrate that the employer had a reasonable and particularized suspicion that justified the search.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Practical Guidelines for Searching Employees’ Stuff • When questioning the employee, observe the following guidelines:CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Practical Guidelines for Searching Employees’ Stuff a. Don’t question an employee based on a mere assumption. Wait until you have collected some evidence that supports this assumption. - assumptions = harassment b. Be careful to keep questioning sessions short, and avoid using any physical restraint or threatening the employee with arrest or termination. - no false imprisonment, coercion, intimidation c. The actual interview should be tape-recorded if possible. Any tapes made for this purpose should be kept in a designated place and the employer should keep track of who has had access to the tape. d. Ask the employee for permission to conduct the search. If the employee refuses, remind the employee of the company’s policy regarding searches. If the employee continues to refuse to consent to the search, ask him or her to sign a statement that he or she knows the company’s search policy and refuses to agree to a search.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Practical Guidelines for Searching Employees’ Stuff e. Ensure that searches are conducted discretely and professionally by properly trained security and management personnel. f. Keep notes of the circumstances that lead up to the search, the reasons for the search, how the search was conducted, and any statements that the employee made during the search. If the employee admitted any wrongdoing, prepare an have the employee sign a written admission. - have a line that says “refuses to sign” g. Avoid conducting any forcible searches. If such a search is needed, call the police and ask them to handle the matter as part of their own criminal investigation. h. Consult legal counsel before terminating an employee who withheld his or her consent to search.CONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  • Matthew D. Austin, Esq. matt.austin@btlaw.com (614) 628-1409 THE ENDCONFIDENTIAL© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property ofBarnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), andmay not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page isintended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.