Two lawsuits in the headlines recently serve as a harbinger to fire departments, unions and firefighters of a technology-based problem. While both cases involve allegations of sexual harassment, they might otherwise appear unrelated. Together, they represent a new reality we all must be prepared for. In Illinois, Country Club Hills firefighter Dena Lewis reported that firefighters were watching pornography in the firehouse over both paid cable channels and the fire department computer system. She claimed that once she reported the misconduct, she was retaliated against. When Lewis retained an attorney, the attorney did exactly what any competent attorney would do these days: she sent a letter of representation to the fire department that included an evidence preservation request.
The purpose of an evidence preservation request is to inform an opposing party that certain evidence in that party’s possession is relevant to a legal proceeding and must be retained. The failure to secure and maintain evidence identified in an evidence preservation request can be considered spoliation. Spoliation is the loss of evidence that is relevant to a legal proceeding. A finding of spoliation can be disastrous to a party in a lawsuit, even if the party has otherwise done nothing wrong.
While evidence preservation requests are hardly a new legal tool, in the digital age they raise additional challenges. Thirty years ago, an evidence preservation request was limited to physical evidence, documents, and perhaps photographs. Today, an evidence preservation request can extend to electronically stored information (ESI) such as emails, text messages, digital imagery, and other types of data such as web visits and download histories.
Adverse inference
An early wake-up call for attorneys and ESI came in 2002 in the case of Zubulake v. UBS Warburg LLC. Laura Zubulake filed suit for sexual discrimination and retaliation against her employer, UBS Warburg LLC. Her attorney instructed UBS to retain all documents including emails between UBS employees concerning Zubulake.
At the time, UBS’ email system was configured to automatically backup emails to a tape storage system, and periodically delete emails from each employee’s inbox to free up memory. UBS was able to produce approximately 100 emails and claimed that was all that existed. However, Zubulake’s attorneys alleged that UBS purposefully failed to retain and thoroughly search its back-up tapes for archived emails.
A 2½-year battle ensued that resulted in monetary sanctions against UBS, as well as an “adverse inference” instruction at trial due to the failure to comply with the evidence preservation request. In essence, the judge told the jury they could infer that UBS failed to produce the emails because the emails contained evidence hurtful to its case. The jury responded with what was then the largest single-plaintiff jury verdict in history for a sexual discrimination lawsuit: $29.2 million.
In the Country Club Hills case, the fire department was accused of failing to properly preserve the ESI on its computer network. Lewis’ attorney requested and was granted a spoliation instruction like the one granted in the Zubulake case. The result was an $11.2 million jury verdict in favor of Lewis.
The lesson from the Country Club Hills verdict is clear: fire departments need to be prepared to deal with an evidence preservation request seeking ESI. Since many fire departments do not have the kind of expertise in-house to do this, having a forensic ESI archiving contractor pre-selected is advisable. Many ESI archiving firms offer free consultations. All fire departments should have a plan for how to address the archiving of its ESI.
What happens in Vegas…
The second case involves a Las Vegas firefighter, identified in court proceedings as Jane Doe. While dating a firefighter from Henderson, NV, Doe shared an intimate video of herself. They subsequently broke up, but the video surfaced and was shared amongst firefighters from both fire departments.
When Doe discovered that her colleagues in the Las Vegas Fire Department were watching the video, she reported the matter to her superiors. She contends the sharing of the video amongst firefighters created a sexually hostile work environment for her and accused the department of not doing enough to stop the sharing of the video.
Doe retained an attorney, who promptly sent an evidence preservation request to the fire department, the firefighters’ union, and a number of firefighters and union officials. The request advised them that “any and all” information in their possession relating to the video, specifically including text messages and copies of the forwarded video, is relevant to an impending legal proceeding and must be preserved. Undoubtedly the attorney is seeking to find out who watched the video, how often they watched it, and more importantly how long after ranking officers and union officials viewed the video did it take for them to initiate official action to protect Doe.
In March 2019, Doe filed suit in U.S. District Court for the District of Nevada. While it will take months to years for the case to wind its way through the legal system, the potential for those involved to find themselves facing an outcome similar to Zubulake or Country Club Hills is enormous.
However, there is one important difference. Zubulake and Country Club Hills involved ESI that was employer controlled. The Las Vegas case involves ESI that extends to personally owned devices and accounts.
Always be prepared
In a perfect world, the risk of losing ESI from numerous personal devices would warrant the department, the union, and the individual firefighters working cooperatively together to forensically archive the requested evidence for their mutual protection. However, is that kind of cooperation realistic?
Is your fire department prepared for such an evidence preservation request? How would firefighters in your fire department react if advised by the fire department administration that their personal text messages, together with the digital footprint of their video watching, needed to be retained and perhaps shared in court? Are firefighter unions prepared for the potential that they could find themselves named as defendants in these types of cases?
The lesson is that unions and firefighters need to be just as prepared as fire departments to forensically archive ESI. Allegations like those in Country Club Hills and Las Vegas can arise in any fire department. Failing to comply with an evidence preservation request can result in a case being lost, even when those involved did nothing wrong.
Let me clarify this last point: the goal of this article is not help fire departments, unions and firefighters escape liability for sexual harassment. Even the best forensic archiving system is incapable of doing anything more than preserving evidence of the truth about what has occurred. If sexual harassment has occurred, those involved should rightfully pay the price.
The point of this article is to help fire departments, unions and firefighters understand their legal obligation in the event they are directed by an attorney to preserve ESI. More importantly, innocent firefighters who are subject to an evidence preservation request and who fail to honor the request, may very well find themselves being held liable to the same extent as if they had participated in the misconduct. That is the message of this article.
Welcome to the new age of electronically stored information.
