The importance of Electronic Record Retention

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

The courts take electronic record retention seriously; you should, too.

We need to take a moment here to reflect on a particular issue with electronic record retention, which is that they present special retention or production problems. Electronic record retention or production is a particular issue because lately, plaintiff’s counsels in employment discrimination lawsuits have become much more sophisticated about the benefit that they can gain from getting electronic copies of email rather or even electronic copies of word documents and such because of the metadata and the other baggage that electronic documents carry.

The metadata of an email for instance can allow you to track where a particular message went, who has seen it, who has read it. So it tells you a lot more information than just what’s going to be printed out on the paper printout of the email.

This was a particular issue and this really started to build over the last decade and a half. And the Zubulake decisions out of the Southern District in New York really catalyzed the movement to try and put it in writing the standards for how we were going to handle electronic record retention. The Zubulake opinion gave guidance on the responsibilities of a lawyer and a client to ensure electronic record retention is taken seriously.

It’s not just that lawyers have a duty to represent you. They’ve also got a duty to the court. Lawyers have to put in place a litigation hold and make known – and make that known to all the relevant employees and communicate it with them directly.

There’s also first responsibilities on the client. Once a lawyer gives you this notice that you need to be keeping documents, the party is on notice of your discovery obligations. If you act contrary to a court’s order, you are acting at your own peril. So, it’s very important that once you hear this, it’s not just a form letter that a lawyer sends you. It’s an extremely important communication to make sure that you keep this information around.

But basically what this means is that at the beginning of a case when the attorneys get together and meet to talk about the case and set deadlines, one of the things that we are required to discuss is any issues relating to preserving discoverable information including electronically stored information, including the form in which it should be produced.

So, at that time if the plaintiff says that all they want is just paper copies of the relevant emails that’s fine. But if they tell me at that point that they’re going to want electronic copies of the emails, I need to already be familiar with and conversant about your company’s electronic record retention system.

There are some limitations on the discovery of items in your electronic record retention system. It doesn’t require production of electronic data from sources that are not reasonably accessible. But don’t think that that reasonably accessible standard gives you too much leeway to keep destroying electronic information after a lawsuit begins.

Importantly, the usual spoliation rules will apply. The spoliation rule is that basically, if you continue to destroy documents after you learned that they are going to be relevant to a particular piece of litigation, the courts have the option of sanctioning you by instructing the jury to presume that those documents would have been damaging to your case. So, that’s a pretty heavy club to swing if you’re in front of a jury.

However, the new rules do provide a safe harbor if your failure to maintain documents, for example if some particular, electronically stored information like an email or some other personnel data that you keep electronically, if that gets deleted from your electronic record retention and it was the result of a routine operation of a computer system and the operation of the computer system was in good faith, in that case the court is allowed to say no harm, no foul.

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

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