eDiscovery Daily Blog

#metoo and the Increasing Investigation Emphasis on eDiscovery: eDiscovery Trends

In our April webcast (Discovery Isn’t Just for Litigation Anymore), conducted by Tom O’Connor and me, we discussed a number of factors that are increasing the need for eDiscovery software and services, including compliance considerations with the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).  The need for eDiscovery in internal investigations is on the rise as well and one of the most significant factors is workplace harassment and #metoo, which we also discussed in that webcast.  Here’s another indication of the growth of that factor.

In the Legaltech News article As #MeToo Yields Harassment Investigations, Companies Turning to E-Discovery to Help (written by Victoria Hudgins), the author discusses how “e-discovery companies say they’ve seen a noticeable increase in the past two to three years from corporate legal departments leveraging their platform to investigate workplace harassment.”

“We are seeing it across the board, not just specifically to one category but the concept of trying to proactively identify behavior before it becomes a bigger issue and addressing it with additional training or self-reporting,” said Sheila Mackay, managing director of eDiscovery services at eDiscovery provider firm H5.

In our webcast, we referenced the 2019 Litigation Forecast from Crowell & Moring where #metoo was identified as one of the top 2019 litigation trends.  As that report noted: “The ensuing litigation is just beginning to wind its way through the courts, and its full impact is yet to be felt.”

“There have been a lot of complaints raised and individuals terminated, but few cases have been fully litigated,” said Ellen Moran Dwyer, a partner in Crowell & Moring’s Labor & Employment Group and chair of the firm’s Executive Committee. “So we haven’t seen a real shift in the legal and liability standards that apply in harassment cases—but that may be coming. Over time, the courts will have to grapple with these issues.”

Investigations don’t always lead to litigation, but it’s notable that, with regard to the litigation associated with #metoo claims, we’re just getting started.  And, organizations don’t just have to worry about individuals filing harassment claims, states are passing a ton of legislation to establish requirements with which organizations need to comply – over 260 laws directly addressing topics supported by the anti-sexual harassment initiatives within a 30-month period.  And, violations could and probably will lead to states filing claims against employers on behalf of harassment victims.  These are new litigation possibilities that organizations have to be prepared for as well.  Of course, the best litigation is the one you never have to conduct, so the importance of using eDiscovery software and services to identify potential harassment issues within the organization and address them proactively has become more important than ever.

So, what do you think?  How has your organization prepared to identify harassment issues?  Please share any comments you might have or if you’d like to know more about a particular topic.

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