Frank Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the Washington, DC, office, was quoted in an article titled "E-Discovery Issues in Workplace Bias Cases," written by Patrick Dorrian.
Following is an excerpt:
As the use of work-related electronic communications continues to proliferate and the capacity to store such information grows exponentially, the need to be aware of the triggers of the duty to preserve electronic data for litigation purposes, and the means for searching it, takes on ever more importance, panelists said March 23 at an employment law conference.
Newer electronic search methods are emerging, such as a case that discusses predictive coding as a search tool. ...
Morris noted that the decision in that case above has been appealed. The parties there did agree on the use of predictive coding, but disputes arose regarding specific details of the discovery to be conducted, and the judge "applauded the attempt by counsel to agree among themselves," Morris said. ...
The panelists said electronic discovery of employee personal communication devices raise potential constitutional privacy concerns.
The issue was presented in a case which involved a California police officer who claimed his Fourth Amendment privacy rights were violated when his employer reviewed sexually explicit text messages on his city-issued pager, but the court "ducked the question," Morris said. The case "is good to get a sense of the issue, but it is not overly helpful," he said.
Morris added that issues regarding cloud computing technology are developing rapidly and also should be watched by employment practitioners.
