Discovery—the right of your employee’s lawyer to seek information from your company—has always been dangerous, and the advent of electronic communications has just made it that much worse. In today’s Advisor, attorney Jean Johnson offers suggestions for reducing liability
This article focuses on the “request for production,” which is a request for documents and other tangible items related to the subject matter of a lawsuit. Other types of discovery include depositions, interrogatories, subpoenas, physical and mental exams, and requests for admission.
Johnson shared her suggestions at a SHRM-sponsored Legal and Legislative Conference. Johnson is a preventive law training specialist from Houston, Texas (www.legalwatch.com).
Why Discovery Is Dangerous
Once the opposing attorneys have a right to discovery, they may conduct a wide-ranging search. They’re likely to find at least one bad communication in some file or on some hard drive. That one document may be enough to force the organization to settle.
Remember that information given to third parties—contractors or consultants, for example—may be subject to discovery.
How to Reduce Exposure
How may you reduce the likelihood that you are sitting on a dangerous document? Here are Johnson’s suggestions.
Don’t Rely on Privilege
Many supervisors and managers believe that attorney-client privilege will protect their documents from discovery. Never rely on privilege, Johnson says. First of all, the privilege is relatively narrow. It only covers communications seeking or giving advice on the case. Simply showing or sending a document to your attorney does not protect it.
Second, someone in the company could waive the privilege.
Third, it’s easy to accidentally waive the privilege. For example, if you share the information too broadly, or if you don’t treat it as confidential material, you may lose the privilege.
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Don’t Rely on ‘It’s Personal’
There is no such thing as personal when it comes to business documents or communications. If it is related to the case, it is discoverable. The contents of a PDA, for example, or a spouse’s knowledge, may be open to discovery.
Watch Out for Drafts
Drafts often contain statements that you’d rather not have others see. They may contain ideas that were floated but were immediately shot down—but that’s not apparent when looking at the draft. Statements in drafts can be taken out of context.
Furthermore, drafts may be used to suggest a subsequent document was generated to hide or circumvent the real facts. “Five drafts?” the attorney will say. “Why did the organization change its story five times?”
Note: It is OK to discard drafts as you work on new versions of a document. However, once litigation starts, or you are on notice that there will be litigation, stop discarding. From that point on, discarding any documents, including drafts, could be a violation of your duty to preserve evidence.
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It’s a wise idea to review your policies and procedures for routine destruction of documents and e-mail, and to be sure that your storage procedures allow for reasonably inexpensive retrieval of documents.
In tomorrow’s Advisor, more of Jean Johnson’s tips on discovery, and an introduction to a special program just for smaller—or even one-person—HR departments.