ELECTRONIC DATA & DISCRIMINATION INVESTIGATIONS

1. ELECTRONIC DATA & DISCRIMINATION INVESTIGATIONS Peter J. Constantine (constantine.peter@dol.gov) U.S. Department of Labor Office of the Solicitor

2. How can electronic data be used in discrimination investigations? • Just like paper documents • Provides additional information/explanation of paper documents • Identifies potential witnesses • Explains/confirms timing of events • Provides or explains statistical and comparative evidence

3. IT FUNDAMENTALS ESI – Electronically Stored Information

4. WHAT IS ELECTRONICALLY STORED INFORMATION (ESI)? • Word processed documents • Metadata • Spreadsheets • PowerPoint presentations • Instant messages • Text messages • E-mails-sent, received, attachments

5. E-mail • “Deleted” files and file fragments • Databases and other systems used 24/7 • Voice Mail • Network usage logs • PDAs such as Blackberries • Etc.

6. WHERE IS DATA STORED? ANSWER: Everywhere

7. Example of E-mail Stored everywhere Plus! • Office PC • Archives • Backups • Blackberry • Email Servers • Hard Copy • Home PC • Removable media CD DVD Flash Drives

8. What makes up an electronic file? Visible Data Metadata

9. COMMONLY ASKED QUESTIONS • What is metadata? • What is “hidden” in spread sheets? • Are files ever really deleted? • How is electronic data backed up and how long are back-up tapes retained?

10. METADATA • Information about a file, document, etc., which may describe how, when, and by whom it was received, created, accessed and/or modified. • Data about Data!

11. Metadata Microsoft Word & Outlook each have 80+ fields of Metadata • System Metadata • Document Properties • System User • Location • Creation and other dates • Application Metadata • Subject • Author • Manager

12. Metadata Con’t • Embedded data – hidden data that a paper copy does not show • Deleted data • Formulas • Redlines • Reviewer Notes • Strikeouts • Tracked Changes

13. Excel Spreadsheet Example

14. Excel Spreadsheet Properties

15. Unhiding the hidden worksheet

16. Excel – Underlying Formulas

17. BACKUPS What is a Backup?

18. Tape or other Electronic Media • A snapshot of files as they existed at the moment the backup tape was created. Not before Not after • The purpose of most government backup systems is to restore data in case of catastrophic loss. • Backups cannot be reliably used to determine if a file or piece of data existed.

19. Backups Con’t • Types: Full Complete copy of selected files/directories 1 full backup per week – total of 4 per month 1 full backup per month – total of 12 per year Incremental Copies only the files that have changed since the last successful backup.

20. Restoring Data from Backups • Generally a very difficult process • Must provide a narrow time frame • May require search of multiple tapes to obtain a complete restored set of data • Even more difficult when it comes to e-mail

21. Document Retention Policy • A plan for the management of records/information, listing types of documents and how long they should be kept. • Purpose is to provide continuing authority to dispose of or transfer records to historical archives

22. QUESTION • What type of ESI might be relevant when investigating a discrimination complaint?

23. The Garcia Case Would you ask for any electronic data?

24. Ms. Garcia went to the Career Center with her 12 year old son, Luis. Initially, she spoke with Ms. Martinez, a bilingual receptionist. Ms. Martinez referred Ms. Garcia to Mr. Jones, an employment specialist, who only spoke English. He gave Ms. Garcia some forms to complete and also asked her to enter some information online using one of the Career Center’s computers.

25. Ms. Garcia said she had great difficulty understanding Mr. Jones and requested if someone who spoke Spanish could help her. Mr. Jones told her that no one was available to assist her. Luis tried to assist with the written forms and entering information online. Several weeks later, Ms. Garcia received a letter, in English, denying her request for benefits.

26. Possible ESI • Word processed documents • E-mails-sent, received, attachments • Metadata • Spreadsheets • Instant messages/Text messages

27. Another Example During an office party, Susan shared the good news that she is expecting twins. Two days later, she received an e-mail from her second level supervisor, Marge, confirming the good news and asking about the due date for the twins. The H.R. Director was copied on the e-mail. Two weeks later, the company announced the elimination of several positions including Susan’s. The announcement was sent by e-mail to all employees and includes a spreadsheet listing the various positions to be eliminated. Susan believes that she was laid-off because of her pregnancy. The H.R. Director claims that the lay-offs had been planned for several months. She notes that the spreadsheet is dated before Susan shared the news of her pregnancy. She also notes that Marge was not involved in the decision to eliminate Susan’s position.

28. Duty to Preserve Electronic Data Required by Federal Rules of Civil Procedure Required by EEOC Regulations 29 C.F.R. § 1602.14

29. PRESERVATION OF ESI • Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold’ to ensure the preservation of relevant ESI. • Failure to preserve evidence may result in sanctions, adverse inference. • Instruct witnesses to preserve electronic data, not just paper documents.

30. Investigation Phase Consider what electronic information you might need when developing investigative plan and during the investigation Who Identify who are the document custodians of interest. Who holds the electronic evidence relevant to the issues. What What are you looking for? Knowing who is likely to create responsive data is a good start. Know the types of data you are searching for (e-mails, Word documents, Excel spreadsheets). Narrow your focus

31. Where Where does the data physically reside? Emails Home/Shared directories Backups When When was responsive data created, modified?

32. CONCLUSION