"E-discovery” is a process that involves gathering, reviewing and producing to opposing counsel electronic data pertaining to a dispute in litigation. Courts impose sanctions when employers do not take steps to preserve this data once litigation is reasonably anticipated. In addition to monetary fines, sanctions can be devastating to the employer’s case: for example, one sanction is an instruction from judge to jury that an employer’s inability to produce e-data means the jury may presume the data would have been harmful to the employer’s case.
The obligation to preserve data arises when litigation is reasonably anticipated, not merely when a lawsuit is later filed in court. In the employment context it can be difficult to distinguish between ordinary workplace complaints and ones that signal litigation. But HR professionals should be alert to signals and confer with counsel when in doubt.
Because employment litigation involves discovery of electronically stored information, monitor the creation and existence of e-data that are relevant to personnel matters and be ready to preserve them when the possibility of a lawsuit arises.
When litigation appears possible, follow these basic steps:
- Issue a “litigation hold” letter addressed to the key individuals involved in the matter instructing them to maintain all documents (including e-data) related to the dispute.
- A generic letter is not enough. Tailor the letter to the type of information you believe the recipient has (e.g., email? financial documents? reports? telephone records?).
- Follow up. Identify and interview key players to determine all potential sources of electronic data, including laptops and ipads, emails, servers, backup tapes, dvds, cds, external hard drives, smart phones (blackberry, iphone, etc.), and flash drives.
- Notify the IT manager to suspend electronic data management systems that automatically delete and/or overwrite possibly relevant electronic data.
- Preserve metadata (computer code).
- Log your efforts. Good faith, diligent efforts to comply now may save you from sanction later.
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