Electronic Record Retention Is Important If You're Hit With A Lawsuit

by on July 6, 2009 · 0 Comment POSTED IN: HR Info Center

Electronic Record Retention Must Be Carefully Monitored

The Zubulake case established that electronic record retention had to be monitored carefully by both sides of a lawusit. This is a case where an employer in the southern district of New York fired its employee, Mrs. Zubulake who in turn sued the company for gender discrimination. And during the discovery, Mrs. Zubulake sent out a discovery request for all documents concerning any communication between her employer – her former employer’s employees concerning her.

Now what happened was that the company produced 100 hard copy pages of emails. Mrs. Zubulake was able to produce 450 hard copy pages of emails. So at that point there were about five separate opinions on the Zubulake case here. And it discussed the scope of a party’s duty to ensure proper electronic record retention during litigation.

And the basic lesson here is that once you know that there is some sort of dispute out there, you need to stop destroying documents right then so that you know that anything relevant to this dispute is preserved. So therefore once you get a lawsuit, the machinery of your document destruction has to stop at that point so that you can cordon off information that is needed for the case to make sure that it’s preserved.

The other thing that the Zubulake case talked about was that the lawyer has a duty to monitor electronic record retention. So this comes on lawyers too. So when there is a lawsuit out there, lawyers have separate duties to make sure that you are keeping this information. So, when a lawyer is coming around and asking to speak with your IT folks or wanting to go in and actually see and find out how your electronic record retention works, it’s not because they are curious about computers or really even know what they’re talking about.

The thing is lawyers have to go in there and find these things out. So these are the important things about that we need to take is that you have a duty to preserve these things. A lawyer has a duty to make sure that you’re doing it and to monitor your compliance with it.

And finally there are sanctions for spoliation or destruction of electronic evidence just like there are for paper documents. The spoliation doctrine says, that if you destroy something knowing that it is relevant to a claim or to a piece of litigation, then you are subject to sanctions which can include a finding by the court that the document you destroyed will establish in evidence things that you don’t want it to establish. So, you can end up really cutting your own throat by destroying evidence and then getting caught doing it.

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

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