Smart employers educate staff about acceptable email use and follow a regular policy of computer-file purging to keep the organization’s network free of unnecessary data.
But what if your organization thinks it may be a lawsuit target?
Prepare to put a “litigation hold” on email deletion if you think those messages could be important to the case. The same goes for text messages. That’s because electronic messages are legally admissible documents just like paper ones are.
Courts will get tough with companies that treat electronic retention and discovery lightly.
Follow four steps to implement a litigation hold on e-documents:
1. Suspend regular data destruction if litigation is likely. This duty to preserve comes into play, at a minimum, when you receive notice that an administrative or judicial claim has been filed against the organization. The need is even more urgent if your organization has reason to believe that an actual lawsuit looms on the horizon.
Your duty to preserve doesn’t extend to every document. You have to save data only if it’s been prepared by or for employees who will be “key players” in the litigation. Rule of thumb: When in doubt, don’t throw it out.
Before purging email or other files, sort through them to determine which could have legal significance. Print them out and file the hard copies. Consult with your IT experts about procedures to protect data from being arbitrarily deleted or overwritten.
2. Train managers and employees on your electronic communication policy. Make sure they understand that email messages are official correspondence that can be called into evidence during a lawsuit.
3. Consistently enforce the policy. Inconsistency—say, for example, letting high-level employees destroy data more frequently than your policy states—could put you at risk of a charge of bad-faith evidence destruction.
4. Establish document-retention periods. You must retain certain documents even without the threat of litigation. For example, all employers must retain federal payroll tax records for at least four years. Trucking companies must hold employee alcohol test results for five years.
