2017 NELA Convention Discovery Bundle

Plaintiffs face unique challenges in preserving and collecting evidence from a variety of sources. To mount a strong offense, we must have a strong defense. Managing e-discovery is an increasingly important part of any law practice, but the price tag of many document management systems on the market often puts them beyond the reach of small law firms, nonprofits, and legal service organizations. Our panelists discuss creative alternatives for handling electronic discovery, especially in class actions and other large and complex cases, when your financial resources are limited.

In Texas Dept. of Housing and Comm. Affairs v. The Inclusive Communities Project, Inc., the U.S. Supreme Court, while extending disparate impact analysis to cases brought under the Fair Housing Act, reaffirmed the viability of that theory under both Title VII and the Age Discrimination in Employment Act. Since that decision, the Court alluded to disparate impact analysis in other contexts, such as in EEOC v. Abercrombie & Fitch Stores, Inc. and Young v. UPS. Issues of statistical proof, both for liability and damages, have also arisen (Tyson Foods v. Bouaphakeo). Special considerations can arise when an employer relies upon computerized screening instruments and “Big Data” to identify candidates for hire. This session explores the current state of disparate impact theory and the benefits and pitfalls facing disparate impact litigation, such as statistical evidence of impact and causation versus statistical evidence of treatment, expert analysis and Daubert, and limitations on remedies.

Facebook, Twitter, and Instagram, as well as other lesser-known social networking platforms used within the workplace, can be a treasure trove of information about workplace culture, including discriminatory remarks and hostile work environments. These postings also can yield powerful evidence in the form of contemporaneous statements that undermine pretextual explanations later offered by an employer for why your client was fired, or disciplined, or not promoted. At the same time, social media postings can be a minefield creating distractions for your case and potentially damaging your client’s credibility, especially if you do not know ahead of time what surprises your client’s Facebook history may contain. Our speakers discuss the state of the law as it relates to social media discovery, and provide practical advice on how to maximize the opportunities of social media for developing your case while avoiding traps for the unwary. In addition, they explore how to best cull, preserve, download, upload, extract, and review social media discovery.

NELA members and our clients are beset with challenges when our clients access employer documents outside the formal discovery process. Documents can include materials generated by clients themselves or co-workers; materials called “confidential” by employers; materials that may be subject to the employer’s attorney-client privilege; and materials that the client wants to produce to a government agency. Clients can be at risk for sanctions and potential civil and even criminal liability; as their lawyers, we’re subject to several conflicting obligations and our own risks. This panel explores the risks and benefits of accessing employer documents from the contrasting perspectives of a lawyer representing whistleblowers; a criminal defense lawyer; and a longtime member of NELA’s Ethics & Sanctions Committee.