Business Records Management Laws Have Changed to Accommodate the Electronic Era

by on July 8, 2009 · 0 Comment POSTED IN: HR Info Center

Mishaps in electronic business records management inspired the Zubulake cases

Within the last couple of years, the federal courts and the federal rules have been changed to accommodate the proliferation of electronic records in litigation. The business records management law changes came about after a series of cases located in the Southern District of New York in 2004 called the Zubulake cases.

The Zubulake cases discuss at length the scope of a party’s duty to preserve electronic evidence during litigation. In Zubulake, spoliation occurred when some of the defendant’s employees deleted relevant emails despite counsel’s instructions. The lawyers asked the employees no to destroy anything but the employees went ahead and did so anyway and got rid of some emails. In response, the plaintiffs sought the adverse inference. The plaintiff asked the court to instruct the jury to assume that those documents were hurtful to the defendant.

The Zubulake case gives some guidance on what the responsibilities of the lawyer and the client are to ensure that electronic information is going to be preserved. A lawyer’s duty is to preserve information—once a lawyer knows of a lawsuit that’s going to require him or her to keep information; he or she must identify all sources of potentially discoverable information. And this involves the lawyer speaking directly with key players in the litigation as well as a company’s information technology personnel.

So, in addition to a lawyer developing a relationship with in-house counsel and in-house HR personnel to deal with business records management, the lawyer also going to have to meet and talk to and develop a working relationship with a company’s in-house information technology or IT people.

And at that point, the lawyer must put in a litigation hold. And all of his or her clients, whenever there is a lawsuit, whenever there is an EEOC charge, or wherever there is a letter demanding that the lawyers take specific action and threaten legal action if they refuse to comply, the first thing the lawyer will do is send out a really long letter stating that any relevant information concerning this person or this situation that they have talked about must be retained immediately.

The lawyer will demand to be informed of any information related to the situation. He or she will need to know how the company keeps it, where it’s kept, and when it was created. If the records are electronic, the lawyer must understand what format the documents are kept in.

Companies, since the Zubulake cases, have to do a lot of explaining to make sure that the lawyers know what information they need to be able to answer the court’s questions.

After these changes were discussed in Zubulake, in 2004, there was a move to revise the federal rules of civil procedure regarding the production of electronically stored information. This way, the law could bring in practice what kinds of business records management issues Zubulake discussed.

Edited Remarks from “Personnel Document Retention: What to Keep, How to Keep It and Why It Matters” by Matthew Gilley

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