What does pornography have to do with civil litigation? Technology makes porn easier to access at work. Also, employees bring work laptops home and personal communication devices to work. Exponential growth in data volumes, coupled with an expanding porn industry, increases the likelihood that X-rated content will find its way into electronically stored information (ESI) on business computer systems. A 2010 porn scandal that rocked the Securities and Exchange Commission demonstrates how pervasive the problem of pornography in the workplace has become. See Ed O’Keefe, “SEC Porn Investigation Nets Dozens,” Wash. Post, Apr. 23, 2010.
Finding porn in business documents collected during discovery is, of course, not new. However, in the days of paper, it was more easily removed from production sets. When an employee personnel file was requested, it was unlikely that a copy of Hustler magazine was tucked out of sight between documents. Today, however, when a request for production is made, ESI is more likely to contain personal—and in some cases salacious—material: An email might contain a pornographic image, a shared folder might contain X-rated downloads, or cached adult content may turn up where you least expect it.
The Federal Rules of Civil Procedure provide that ESI is discoverable if it may lead to information relevant to any party’s claim or defense. Pornographic ESI in civil matters is not typically going to have relevance, and the requesting party is not likely to be looking to discover porn. Nonetheless, offenders often make a mad dash to delete adult content before their data are collected, and that can pose serious risks to parties in litigation.
What impact can pornography have on e-discovery in an individual matter? Let’s take a look at e-discovery and pornography through the familiar stages of the Electronic Discovery Reference Model (EDRM).