Any employer that has been the subject of e-discovery requests can attest to the difficulty and expense encountered when compiling and producing company electronic communications. These burdens have been further exacerbated by the use of newer forms of electronic communications that subsequently become the subject of e-discovery requests. Many employers are reviewing their electronic communications policies in an attempt to restrict workplace communications to formats that can limit later discovery responses.
Earlier this year, a federal district court in California gave additional support to these efforts. Kellgren v. Petco Animal Supplies, Inc., is a class action wage and hour claim filed against the retailer. The plaintiffs issued discovery requests seeking production, among other things, of text messages sent by Petco managers that discussed staffing levels or labor budgets. Petco objected to these requests as burdensome, noting that the purported texts were sent using the managers’ personal phones. When denying the plaintiff’s motion to compel discovery of the texts, the court pointed to Petco’s Store Communications Policy, which advises managers that they are only permitted to communicate with stores through email or voicemail. Given this policy, the court concluded that text messages were unlikely to result in discovery of information relevant to the claim.
This decision may spur employers to adopt similar language in their electronic communications policies. By restricting business communications via text message or social media platforms, companies can raise substantial objections to broad e-discovery requests. These limits have the additional benefit of giving the employer the ability to have access to all business communications if the need arises. If combined with employee training regarding electronic communications procedures, these policies can avoid some of the expense and burden imposed by e-discovery requests.