Electronic recordkeeping is becoming the norm, and it presents special challenges for employers when records must be produced on demand. One such circumstance is when litigation is pending. Read more for details on employer requirements in these circumstances.
Electronic Recordkeeping: What Records Count as Official Files?
“It’s important that HR professionals and supervisors understand that just because a record is electronic, that doesn’t mean it’s not a file. An electronic record, once it has been created it’s just like any other paper document or file. You are going to have to keep it and you are likely going to have to produce it if you’re involved in litigation.” Jason Ritchie advised in a recent BLR webinar.
Electronically stored information includes email, web pages, word processing files, email servers, archive systems, instant messaging (including data on servers), text messaging, voice mails, backup systems, imagery document scanning systems, hand-held storage and communication devices, cell phones, fixed storage devices (for example, hard drives on network servers, backup systems, individual work stations, and laptop computers), and portable storage devices (for example, CDs, DVDs, and memory sticks).
Electronic Recordkeeping: Proper Handling during Litigation
“One of the keys to maintaining your electronic records is to know where the electronic information is and how it is stored before it has to be produced.” Ritchie told us.
The law requires that when it is merely “reasonably foreseeable” that employment litigation may occur, the employer must begin retaining and preserving every document that may be pertinent to the potential litigation. Factors indicating litigation is foreseeable include:
- A subpoena is received.
- A complaint is filed starting a lawsuit.
- A government agency gives notice of an investigation, including the filing of a charge.
- A lawyer or third-party investigator requests information relating to an accident or workplace dispute.
- An incident resulting in injury occurs.
- An employee makes a formal complaint to management.
- An employee threatens litigation against a company representative.
When one of these occurs, the obligation to identify and preserve documents and other information is triggered. Failure to preserve and produce information can cause big problems for your company.
“When it is reasonably foreseeable, you have to take steps to preserve all electronic information that could pertain to that employee . . . and if your computer system has an automatic deletion function (where an email that’s been in the deleted items for more than 90 days is automatically deleted) [for example], you have to take steps to stop that automatic deletion in order to preserve that electronic information. If you fail to do so, you could be liable.” Ritchie noted.
Litigation holds are another aspect of this situation. Your lawyer should help you work out the details. In this case, you have to notify everyone who potentially has information related to the dispute and tell them to keep all records related to the litigation. They have an obligation to persevere the records. The litigation hold prohibits modification or destruction of records no matter what.
For more information on proper electronic recordkeeping during litigation, order the webinar recording of ” HR Recordkeeping: Practical Strategies for Maintaining an Accurate and Efficient Records Trail.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Jason S. Ritchie is a partner at Holland & Hart LLP, where he represents clients involved in virtually all types of labor and employment disputes including claims of wrongful discharge, harassment, discrimination, breach of employment contract, and responses to state and federal investigations.