Wednesday, May 16, 2007

E-discovery provides a potential weapon against litigating employees

After Target Stores terminated Judith Teague's employment, she claimed gender discrimination and filed a charge of discrimination with the EEOC and a subsequent lawsuit in federal court. During discovery in the lawsuit, Target learned that Teague owned a home computer on which she conducted a comprehensive on-line job search and exchanged e-mails about her termination and the discrimination claim. Target asked for the computer in discovery in support of its defenses to her back pay and discrimination claims. Teague claimed, however, that in August 2004 the computer "crashed" and she disposed of it. Because of her spoliation of relevant evidence, the District Court granted Target an adverse inference instruction -- that is, at trial the jury would be permitted to infer from Teague's destruction of evidence that any such evidence that would have been found on the computer would have favored Target. In so ruling, the Court relied on several facts. First, Teague had an obligation to preserve her computer because it contained electronic evidence relating to her claim against Target and her efforts to mitigate her damages. Secondly, because at the time of disposal she had already filed her EEOC charge and hired an attorney to pursue litigation, she discarded the computer with a culpable state of mind.

Thus, the Court announced that it would sanction Teague by giving an adverse inference instruction to the jury at trial. Not surprisingly, within two weeks of that Order, the case was settled and dismissed on terms that one can only assume were very favorable to Target.

Employers have been fearful that the recent e-discovery amendments to the Federal Rules of Civil Procedure would prove to be expensive and burdensome in managing myriad e-mails, documents, and information stored daily on corporate servers. Teague v. Target Corporation shows that e-discovery also is a potential trap for unwary employees and a potential weapon for employers to add to their arsenal of litigation tools. Companies should considering asking in discovery for e-mail addresses and computer information from all plaintiff-employees. As Target found out, you never know what you will find. As Teague v. Target Corporation points out, it's often what you do not find that proves the most helpful.