With the number of emails, texts, and other electronic data in the workplace today, not knowing your company’s litigation preservation duties or not having proper procedures in place to meet those responsibilities may later lead to court sanctions such as fines or the loss of a lawsuit. The law prohibits the destruction of potentially relevant evidence. Today, a company must know (1) when it has an obligation to preserve information and (2) what information it must preserve.
This responsibility usually falls on the shoulders of the business managers and human resources people who address the issue before outside counsel become involved. Managers and HR professionals must understand the instances that may give rise to the duty in the employment context, and they must be able to assess what evidence to preserve and what steps to take to ensure preservation.
The duty to preserve documents and electronic information arises when an employer has notice that the information is relevant to litigation or when an employer should have known that the information may be relevant to future litigation. In other words, documents and electronic data must be preserved when litigation is “reasonably anticipated.” The usual circumstances kick-starting this duty might be a lawyer’s letter, notice of a complaint filed with the EEOC or a state agency, or notice of a lawsuit. Depending on the circumstances, the duty to preserve may arise even before this.
What information must be preserved depends on two variables: (1) who is involved; and (2) what documents such people have. When a reasonable anticipation of litigation arises, a company should ascertain the key players or which employees are likely to have relevant information. A company should then determine what documents each person may have. That inquiry inherently requires an investigation of the types of information that each key player may have and the locations where that information may be stored, including documents in various electronic forms and mediums (desktop, laptop, server, thumb drive, audio, camera, cell-phone, etc.).
As a company learns more about a potential dispute, it should reassess whether it has preserved all of the evidence that it must preserve. That involves reassessing whether there are additional key players, whether there are new issues that require the preservation of a broader type of evidence, or whether evidence spans a broader time period than initially preserved.
The obligation to secure evidence can require a company to take a number of different actions. Some of the common steps include:
(1) Determine the scope of the litigation hold (including subject matter and issues, key players, location of data, and relevant time periods) and promptly stop automatic destruction processes until the proper scope can be determined.
(2) Issue litigation hold notices to key players and other corporate employees, such as IT people, informing them that there is a hold on the destruction of any documents subject to the preservation obligation. Key players should be reminded that preservation includes all information within the scope identified no matter where the data is located.
(3) Interview key players, and determine any required expansion of the scope of the hold and segregate them to prevent any destruction.
(4) Work with IT people to ensure that routine data destruction measures are appropriately stopped according to the hold.
(5) Make electronic forensic images of the hard drives and other electronic devices of certain key players.
A company must take prompt steps to preserve potentially relevant evidence when a reasonable anticipation of litigation arises. It should have procedures in place for determining the key players, the relevant time period, and where any documents and data may be stored. A company may consider consulting with counsel on the duty and scope of a litigation hold so that it does not face problems later.