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The New Electronic Discovery Rules: A Place for Employee Privacy? |
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Elaine Ki Jin Kim [View as PDF]
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115 Yale L.J. 1481 (2006)
A package of proposed amendments on electronic discovery, or "e-discovery," has recently been approved by the Judicial Conference and now awaits consideration by the U.S. Supreme Court. Although the amendment process appears to be in the final stages, it will be some time before the new rules go into effect. Meanwhile, courts continue to formulate their own e-discovery rules. One recent case, Zubulake v. UBS Warburg LLC, has intensified corporations' anxiety about their e-discovery obligations. In this employment discrimination case, the district court treated data stored on magnetic backup tapes as broadly discoverable, eventually instructing the jury that it could infer bad faith on the part of the corporation for its e-discovery failures.
While Zubulake and recent commentary on e-discovery have emphasized balancing the interests of the litigants, this Comment shifts the focus to the collateral effects that e-discovery may have on everyday employment relations. Specifically, this Comment contends that the e-discovery framework offered by Zubulake increases incentives for employers to implement intrusive forms of electronic surveillance. While the Judicial Conference's proposed rules may reduce these incentives indirectly by easing the discovery burdens on employers, courts applying the new rules can and should engage the issue of employee privacy directly. This Comment suggests how courts can shape e-discovery procedures to discourage the abuse of surveillance technologies and protect privacy in the workplace.
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