I came across an article that points out some issues having data in “the cloud” may present in an employer defending itself in a discrimination suit. The article was written very “lawyerly” and dealt more advice to attorneys about the E-discovery process, but I gleaned from it an HR lesson or two.
It was about age discrimination
The case dealt age discrimination with two sales reps, Robert and Christine Brown, alleging the reason for their termination was age discrimination. Their employer, Tellermate Holdings Ltd., said the reason was failure to meet increasing sales targets over a period of years. Seems like it might be a straight-forward case, the employer presents its sales records of the Browns’ activity; shows the lack of productivity and case closed. Unfortunately it was not that easy. Tellermate used salesforce.com’s CRM to track all the activity of the sales people and when asked to produce that data they did not know how to do that to the satisfaction of the judge.
Attorneys Eric Mandel and Charles Ragan, of Zelle Hofmann Voelbel & Mason LLP, writing in A Wake-Up Call To Counsel Over ESI Discovery, have geared the purpose of their article to talking about the mistakes made by the defense attorneys in dealing with the e-discovery process, ultimately allowing the Browns to win their case. The attorneys did not understand the CRM and they used overly broad searches flooding the court with 50,000 irrelevant documents (a strategy sure to make you a favorite of the judge.) Subsequently the judge ruled that any data they produced on performance was potentially tainted and thus inadmissible.
The mistake the employer made was not understanding how to use their system of documentation. According to Mandel and Ragan “Tellermate’s employees, including plaintiffs, used salesforce.com to keep track of all contacts with customers. The system was ‘dynamic’ in that users add to or change data within the system as they interact with clients.” Yet their defense attorneys claimed “that defendant did not have and could not produce the requested salesforce.com information, and that defendant could not take steps to preserve the information in the database (e.g., by obtaining an export of the data early in the litigation)”.
The judge pointed out in his opinion, “no cogent argument could be made from the agreement between salesforce.com and Tellermate that: (1) the defendant was prohibited from accessing the information and producing it in discovery or (2) that salesforce.com was backing up the information periodically such that preservation steps by Tellermate were unnecessary.” Apparently the judge did not see that as a good defense.
There are a lot of lessons in Mandel and Ragan’s article for attorneys on the process of e-discovery. It is a good lesson for employers as well if you take some time to read it. The specific lesson for employers is YOU need to UNDERSTAND the systems you are using to store data in the cloud. I am not saying you should not use the cloud (actually tough not to these days) but have someone that knows how to recover data as needed. It might save the company someday.
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