E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

We live in a digital world where smartphones are the norm and email access is seemingly as important as food and water. This increase in usage of email and the amount of electronic data requires companies to develop ways to collect and store a significant amount of data. Inevitably, this data will have to be searched, reviewed, and produced to opposing parties in the event of litigation and often at great cost to the producing party. Fortunately for one plaintiff, however, this is a cost that it will not have to incur.

In I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D. N.J. Dec. 9, 2011), Judge Debevoise was asked to consider whether the plaintiff was required to produce documents from so-called “unallocated space” areas on its computers, namely, the area of the computer where deleted files and temporary data are stored. The parties stipulated that the defendants would hire an expert to conduct a “forensic investigation” and keyword search of the plaintiff’s entire computer system, using over 50 search terms. This search was not limited to specific custodians or time periods and, in the unallocated space alone, the search terms yielded an estimated 65 million “hits,” or 95 million pages of files. In light of this, the Magistrate Judge modified a previous order, which required the plaintiff to produce the results of the forensic investigation and allowed the plaintiff to exclude data from the unallocated space.

In reviewing the Magistrate Judge’s modification, the Court acknowledged the overwhelming burden to the plaintiff if it had to review the documents from the unallocated space. The Court further explained that a “privilege review of 65 million documents is no small undertaking” and that “[e]ven if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.”

The Court also recognized that the defendants did not show the likelihood that relevant and non-duplicative information was stored in the unallocated space. Additionally, the Court found that the money the defendants spent to obtain the data “pale[d] in comparison” to the cost the plaintiff would incur to review the data.

Finally, the Court addressed the proposed search terms and discussed five factors to consider when analyzing whether those terms were reasonable: “(1) the scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians; (2) any date restrictions imposed on the search; (3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents; (4) whether operators such as ‘and’, ‘not’, or ‘near’ are used to restrict the universe of possible results; [and] (5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.” The Court examined all of these factors and stated that although the plaintiff should have “known better than to agree to the search terms . . . the interest of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.”

The plaintiff in I-Med Pharma Inc. was fortunate in that the Court did not force it to review and produce all of the data in the unallocated space. Not all parties, however, will always be as fortunate. When negotiating with the adverse party regarding the search terms to be utilized for a document production, the following steps may avoid situations similar to those facing the parties in I-Med Pharma Inc.:

·         Know your client’s data system. This may be the most obvious, but most important, advice. To negotiate effectively, you must know certain aspects of the data storage system, such as how much data is contained there, how many potential custodians exist, how long is data retained, and where potentially duplicative data resides.

·         Negotiate for the use of restricting terms. This is especially true with frequently used words. For example, in I-Med Pharma Inc., one of the search terms was the word “return.” Negotiate for the use of search operators, such as “and,” “not,” or “near” in an attempt to further limit your results.

·         Do a sampling first. If possible, run a search with proposed terms to determine what types of “false positives” may result. This will enable the parties to further analyze the negotiated search terms and their effectiveness.

·         Determine relevant time periods and custodians. Limit searches to only those individuals who had a role in the subject matter of the litigation and to only that time period in which relevant documents may exist.

·         Be willing to seek the Court’s assistance. I-Med Pharma demonstrates the efficacy of seeking the Court’s involvement early on to limit the costs associated with e-discovery. When doing so, however, make sure you have done your proverbial homework and are able to educate the Court as to your client’s data systems and what the search proposed by the opposing side truly entails.

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If an employee came to you and said that he can’t comply with your company’s dress code because he belonged to the Church of Body Modification, what would you say?   You may need to rethink that.

I don’t watch ABC’s “The View”.   Not that there’s anything wrong with it. Though, an episode a couple of weeks ago prompted a thought about the role that social networking sites could have on religious expression in the workplace.   On September 16^th, the hosts of The View discussed how a North Carolina High School student was suspended because she wore a nose ring. The student alleged the school’s dress code violated her freedom of religion because she wore the nose ring as part of her faith in the Church of Body Modification. The hosts noted that that Church had approximately 3500 members, and may have been federally recognized as a tax-exempt religious entity.

Doing a little research, I found that this was not the first time such a claim was made by a Church member.   According to news reports, Costco apparently fired a woman back in 2001 after she refused to remove an eyebrow ring.   The employee sued for religious discrimination, claiming that she was a member of the Church of Body Modification, a religion that she said dated back to 1999.

Social media arguably makes it easier for employees to claim that they are members of a religion.   Indeed, one of the primary benefits of social networking sites and blogs is the ability of individuals to assemble and participate in large groups holding common interests and expression.   It could be for recreational, educational, political, or cultural reasons, and can be for religious purposes as well.    But how far can they go?   Do you need to recognize as a “religion” a group of employees claiming to belong to the “Church of Face Painting,” where employees believe that their favorite football teams will receive divine intervention on Sundays only if they paint their team’s colors on their faces every Friday in the office?   Or, the “Church of Hendrixology”, where Jimi Hendrix music must be played while the employee performs any form of physical labor?

Title VII of the federal Civil Rights Act obligates an employer to offer a reasonable accommodation when faced with a conflict between an employee’s sincerely-held religious belief, and a policy or condition of employment maintained by the employer, unless doing so would create an undue hardship for the company. The statute defines “religion” as including “all aspects of religious observances and practice, as well as belief[.]”   Inherent in that, however, is the requirement that the employee have a bona fide religious practice or belief. Courts have addressed this notion of what constitutes a religion in many different contexts, and the IRS even has guidelines to determine religious status for tax exemption purposes.

The line between church and state, and between religious observance and workplace rules, is getting increasingly more blurry.     Social media is arguably making it easier for employees, and other groups of individuals, to express religious views and engage in common, organized religious observances.   Employers need to understand their obligations without dismissing religion-based claims simply because they may not fall within the traditionally-held notions of what a “religion” may be.

Employer Take Away:   What should you as an employer take away from this development?

(1)        Extreme and frivolous claims will not generally lead to employer obligations in the area of required religious accommodation.    However, in the event you learn through social media or otherwise that an employee or group of employees claims that a religious belief or practice must be accommodated, you should not merely ignore that claim because it seems silly, trivial or self-serving at first blush.   You should effectively treat religious accommodation cases much like you would disability accommodation cases, and do at least a minimal analysis based on applicable legal definitions and requirements to determine whether there is sufficient indicia of a sincerely-held religious belief or practice.

(2)        You should determine whether there is, in fact, a true conflict between the employee’s religious belief or practice and the policy or conduct rule being violated.

(3)        You should engage in a form of interactive process to determine whether there is an accommodation that can be provided that alleviates the conflict, while not posing an undue hardship for your company.   While wanting to avoid any precedent-setting accommodation, you may be able to avoid unwanted lawsuits and negative publicity by making simple changes to accommodate one’s religious beliefs.

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