So Much ESI is “Fair Game” When It Comes to Employment Litigation

Written by Doug Austin, Editor of eDiscovery Today

Perhaps one of the most common types of eDiscovery case law rulings that I write about relates to employment litigation. Employment disputes are common and many of them lead to litigation, which leads to discovery of ESI to support or refute the employment dispute claims. That ESI could be just about anywhere and so much of it is “fair game” when it comes to employment litigation.

Laws and Enforcement

Before we discuss potential sources of ESI, it’s important to understand a few of the laws designed to prohibit discrimination around which employment disputes lead to litigation and one very important government agency responsible for enforcing those laws.

Title VII of the Civil Rights Act of 1964: Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

Age Discrimination in Employment Act (ADEA): ADEA forbids age discrimination against people who are age 40 or older.

Americans with Disabilities Act of 1990 (ADA): Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities. Since July 26, 1994, Title I has applied to employers with 15 or more employees. Title V contains miscellaneous provisions which apply to EEOC’s enforcement of Title I.

Equal Employment Opportunity Commission (EEOC): EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.

Many employment discrimination disputes start as claims filed with the EEOC. Sometimes, EEOC becomes the plaintiff on behalf of individuals asserting discrimination claims, like this case I covered in 2020.

There’s an additional government agency responsible for safety in the workplace and addressing litigation associated with workplace accidents:

Occupational Safety and Health Administration (OSHA): With the Occupational Safety and Health Act of 1970, Congress created OSHA to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA is part of the US Department of Labor.

ESI in Employment Claims

The types of ESI that could be relevant in employment cases are about as diverse as the types of ESI that exist. Examples for discrimination and workplace accident disputes include:

Correspondence: As I’ve discussed on this blog many times before, including this post, correspondence isn’t just email anymore. It’s also text messages and chat app messages from collaboration apps that reflect discussions between employees and supervisors (or between supervisors and upper management). Data from mobile devices is frequently relevant to employment claims as employees and supervisors are using them more frequently for quick check-ins. These discussions often can make or break the outcome of employment cases. Of course, attempting to fabricate evidence to prove a harassment claim will get your case dismissed, as this case shows.

Office Files: Employee reviews and other performance related documents may be stored in word processing, spreadsheet, Adobe PDF, or other types of office files. Safety procedures and checklists associated with workplace safety can also be found here.

HR and Payroll Solutions: Data from HR systems involving promotions regarding the claimant employee and comparison against other similarly situated employees can be key in establishing or refuting discrimination claims, as can comparisons of pay between similarly situated employees.

Social Media: Posts from employees can lead to termination if they violate employer standards regarding comments about the employer or the workplace.

Audio and Video Files: Even audio and video files can be discoverable. Surveillance video in the workplace can be critical to assess the validity of workplace accident claims. And recordings of meetings with employees regarding performance or employee complaints need to be preserved, as the defendant discovered in this case.


The types of ESI discussed above illustrate just how much ESI is potentially discoverable in employment litigation – essentially just about any type of ESI that your employees or your organization generates could be discoverable in employment cases. Employment laws and agencies have strict requirements for how employers treat their employees, so it’s important to develop strong checklists to ensure that potentially responsive ESI is being preserved to comply with these laws.

That ESI could literally be anywhere and just about any of it could be “fair game” in discovery

And for more educational topics from me related to eDiscovery, information governance, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!

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