Suits In The WorkPlace

Litigation Hold Means "Hold"

A recent federal decision in Georgia penalizes a company for failing to execute on a litigation hold put in place by the company's general counsel.

Connor v. Sun Trust Bank, No. 1:07-cv-0650 (N.D. Ga., Mar. 5, 2008) is a wrongful termination case alleging a violation of the Family and Medical Leave Act. Connor was notified that she would be terminated approximately one month after coming back from maternity leave at the beginning of January, 2007. Her supervisor, who made the termination decision, sent an email to senior managers of Connor's group on February 12, 2007, explaining the reason for the termination.

Eleven days later, the bank received a letter from Connor's attorney cautioning it to preserve any documents relating to Connor's firing. The next day, the bank's general counsel instructed several employees, including the supervisor and the human resources director, to preserve all relevant documents in their possession or control, including their emails. The bank's email system automatically deletes email after thirty days, and back-up tapes are overwritten after ten days; employees must archive emails to save them past these dates.

The February 12 email was not produced in discovery and the plaintiff got a copy of it through some other means (presumably from some sympathetic coworker). Notwithstanding the standard "no harm, no foul" rule in discovery, the court determined that spoliation of evidence had occurred given that the supervisor was told to retain any email and failed to do so. The court found that the bank had acted in bad faith by failing to produce the missing email, but limited the sanction to an instruction to the jury about the appropriate inference to draw from the absence of evidence.

What this means in plain English is that the jury would be instructed that the destruction of the February 12 email indicated that the bank or the supervisor wanted to hide the document because it contained incriminating evidence. The lesson here is fairly straightforward. A litigation hold means “hold”, and the bank's counsel should have taken steps to ensure that the instructions were followed by these key bank managers. In addition, the bank should have had a policy indicating that emails relating to terminations should be printed out and forwarded to human resources for inclusion in the personnel file. This routine step would have prevented this spoliation charge.

Employees and Computer Fraud

I have written before about employees going ballistic on their bosses' computer systems and the risks employers face in these situations. A recent case out of a federal court in Illinois (Wong & Assoc. v. Nichols, No. 07C6277, Jan. 16, 2008) discusses the application of a federal legal remedy, the Computer Fraud and Abuse Act, or CFAA, that can be applied in both a criminal (read that as U.S. Attorney, federal judge, federal prison type of situation) and a civil one, where you merely get sued for money damages. However, the statute has some fairly specific requirements that have to be shown before bringing down the wrath of the federal government on one of your employees for misconduct.

In this case, the employer brought a CFAA action against a former employee who walked out with confidential company information that he had taken off the company's computer system. That's all he did -- copied information down and left. He didn't try to hide his theft by wiping his hard drive, stealing a computer system, or any other nefarious act.

In tossing out the CFAA cause of action, the court noted that the statute requires both that there be "damage" to the computer system (defined as impairment to the integrity or availability of data, a program, a system or information) and "loss" (defined as any reasonable costs to the victim incurred in responding to an offense, or suffered as a result of the interruption of service). The court said that simply taking the data, without damaging the computer system and causing lost revenue as a result, was not a violation of the CFAA and dimissed the case.

Faking It

    The Wall Street Journal recently discussed a psychological test designed to spot personal injury plaintiffs who are faking their conditions.  The test, known as the Fake Bad Scale (as opposed to a similar test for negligence, known as the "My Bad" Scale), is a variation of the well-known Minnesota Multiphasic Personality Inventory ("MMPI"), and, in fact, has been endorsed by and made a part of the MMPI regimen.  The test focuses on claimants who state that they have injuries, or are experiencing pain, with no or little discernible physical cause.

     Use of the test is apparently widespread -- one study found that it has been administered by 75% of neuropsychologists.  Coincidentally, these are often the people who appear as expert witnesses at trial for or against plaintiffs in assessing psychological impact of personal injuries.  The 43 true/false questions are integrated into the MMPI and then scored to see if there is an indication that the person is a malingerer. 

     The scoring differential between people who are known to be malingering, people who had been instructed to try to fake malingering, and the truly injured is fairly significant, at least according to the reported research.  People with a score above 20 on the 43-question scale are tending toward fakery.  For purposes of marking people as possible malingerers, the test administrators use a cut off of more than 23 points.

     Of course, the test is under attack by the personal injury plaintiffs' bar, as well as some psychologists.  At least one court has tossed the test results out as evidence, although the court's analysis seems suspect.  Specifically, the court looked at individual questions rather than the total question package, finding that a test that gives points for malingering when a plaintiff gives honest answers to questions based on actual injuries, was improper.

     Other researchers state that the test gives too many false positives, claiming that it was unlikely that so many patients could have fooled doctors into diagnosing them incorrectly.

     As somebody who has both used and challenged psychiatric/psychological testimony in court, I don't find it difficult at all to believe that large numbers of patients could fool mental health physicians or social workers.  The field is rife with inconsistent application of standards, overly subjective analyses, and incomplete investigations of patients' complaints.

      There's an interesting discussion of the issue, replete with comments from professionals, here, under the March 12 entry.             

     For a culture that embraces psychological analyses of all types, the idea that there would be substantial push-back to a test that might cut down on false claims is surprising.  But the pushback is also consistent with our natural inclination in this culture to refuse to confront unpleasant truths.

Listening Post

Some Thoughts on the Recent Supreme Court Employment Law Opinions

    The Supreme Court recently decided two cases relating to employment law issues.  In the first, involving Federal Express, the Court attempted to resolve the issue of what has to be submitted to the EEOC to comply with the requirement that an employee file "a charge" alleging unlawful age discrimination to begin the litigation process under the ADEA.  The second case, which involved Sprint as a defendant, related to a more serious issue of whether coworker testimony about how they had been treated could be admitted to support an individual plaintiff's discrimination claim.

    In the FedEx case, the employee filed an intake questionnaire and detailed affidavit supporting her age claim, but did not file a formal written charge of discrimination on a form typically used by the EEO.  The Court noted that the EEOC’s position--a charge was a filing which, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action necessary to vindicate the employee's rights--was entitled to substantial deference.  As noted above, this written filing generally occurs using a particular piece of paper, but sometimes it doesn't.  The Court determined that the EEOC's uneven application of the standard was not enough to void it, and, therefore, the documents ultimately filed were sufficient to meet the charge requirement under the statute. 

    If the administrative phase of the EEOC proceedings were more significant in the overall litigation process, this decision might be big news.  As it is, relatively few of the cases that make it to litigation are disposed of by pointing out some failure in the nature of the charge actually filed with the Commission.  The Court's interpretation of the EEOC regulations is consistent with its general rule that federal agencies can set their own standards as long as those standards are reasonable. 

    The Sprint case is something of a disappointment.  The plaintiff here also sued for age discrimination (these cases are going to become more and more prevalent over the next decade as the Boomers do not go gently into that good night) and, at trial, sought to introduce testimony by five other former Sprint employees who claimed that they too had also been victims of age discrimination at Sprint.  None of the individuals worked in the plaintiff's group, nor had any of them worked with the supervisors in her chain of command.  Sprint, of course, moved to exclude this testimony, saying it was irrelevant to the central issue of whether plaintiff's supervisor terminated her because of her age.  The trial court agreed, stating that evidence of discrimination against employees not similarly situated to the plaintiff proved nothing.  The 10th Circuit Court of Appeal treated the trial court's ruling as an application of a per se rule that evidence from employees with other supervisors was irrelevant to proving discrimination in an ADEA case.  It reversed the district court, determined that the evidence offered was relevant and not unduly prejudicial, and remanded for a new trial.

    The Supreme Court dealt with this case on more of a procedural issue, rather than a substantive ruling.  Specifically, the Court noted that the court of appeals failed to give due deference to the trial court.  Accordingly, the Supreme Court kicked the case back to the court of appeals and told it to try again.

    In remanding, the Court noted that this type of "me too" evidence should not be excluded per se, but rather, must be viewed on a case-by-case basis, to see if it comes in.  This is pretty standard stuff -- anyone who's tried one of these cases knows that the issue of evidence exclusion turns on how the parties plan to use it at trial and what other evidence actually comes in at trial.  Frequently, preliminary motions excluding evidence are reversed during the course of the trial based on witnesses' testimony and the judge's assessment of what's been proved.  Rather than provide a rigid standard, the Court pushed the case back to the trial judge to explain the nature of his rulings.

    Neither of these cases is particularly momentous, and neither provides any real guidance for employers.  There are still important cases out there to be resolved this term, so stay tuned.