Court Orders Production of E-mails in Employment Discrimination Case

A recent federal case from the Eastern District of North Carolina demonstrates the importance of electronically stored information, or “ESI,” in employment discrimination litigation.  In Freeman v. Dal-Tile Corp., 2012 Westlaw 4577718 (E.D.N.C. 2012) a former employee alleged that she suffered both sexual harassment and racial harassment, as well as a discriminatory discharge and retaliation, at the hands of her former employer.  In an effort to develop these theories, the plaintiff’s lawyers served several interrogatories and requests for production of documents aimed at discovering electronically stored information sent to or received by several specifically identified employees.

In opposing the requests, the employer argued, in part, that electronically stored information generated after the plaintiff’s termination of employment would be irrelevant and, therefore, not discoverable.  The plaintiff, in turn, moved the court for an order compelling production of the requested information.

After summarizing the broadly construed standard of relevance applicable to civil discovery, the court noted that e-mails generated within two months after the termination could contain pertinent historical information, such as “e-mail chains.”   Because the identified e-mail custodians included the HR officer responsible for investigating the plaintiff’s complaints and a regional vice president to whom the findings were reported, the court also found it reasonable to expect these individuals to possess relevant information. 

The court also found the list of search terms reasonably related to the plaintiff’s claims of harassment on the basis of sex and race.  The plaintiff’s lawyers had limited the scope of the requests by identifying specific ASCII strings that would enable keyword searches of preserved e-mails and computer hard drives.  Finding the listed ASCII strings appropriately limited in number and scope, the court agreed with the reasonableness of this requested search method.

Finally, the court dispensed with an argument that production of e-mails could be avoided because the plaintiff did not allege that she had been harassed via e-mail.  The court noted that an issue in the case would be the employer’s knowledge of the harassment and its response to the harassment.  E-mails involving the identified persons and containing the identified search terms could prove relevant to these issues.

For these reasons, the court granted the plaintiff’s motion to compel.  The employer was ordered to conduct a keyword search of preserved e-mails from a two and one-half year period, as well as an image and keyword search of its HR officer’s computer hard drive.

The case illustrates the potential significance of ESI in harassment litigation.  As the ruling confirms, e-mails and other ESI can be used not only to prove the occurrence of harassment, but also the employer’s knowledge and response to it.  The case also reflects the courts’ willingness to require reasonably tailored text searches of ESI.