Employers and HR professionals hear it all the time: You must be prepared to preserve relevant corporate information and data and produce it if you are sued. New federal court rules mandate it, as do numerous state and federal court rulings. And rightly so!
If you're involved in litigation and can't produce such information, you'll probably suffer very real adverse consequences—most notably the imposition of extreme monetary penalties.
In the discovery phase of most litigation, opposing attorneys routinely request hard-copy records and electronically stored information for possible use as evidence. The records can involve all kinds of company documents, financial statements, business records, personnel files, project plans and other information.
Preserve, identify, retain
Executives, administrators, managers, HR specialists and anyone else responsible for records and data must take every reasonable step to preserve it and ensure that all relevant information (and its sources) is identified and retained on a continuing basis.
What to store? When to shred? Use this guide to help you decide — Personnel Records: What to Keep, What to Toss
Most "litigation hold” and data-preservation rules focus on ensuring that relevant, nonprivileged material can be produced during discovery to an opposing party. However, having sound preservation and retention practices can benefit you, too—by making it far easier for you to gather evidence that will support your defense.
Note: Preserving and retaining important company data isn't just relevant to employment law matters. It's also crucial when dealing with criminal trials and all other civil proceedings.
22 steps to follow
You can take some preparatory steps to ensure that you can comply with inevitable litigation holds and that you're proficiently primed to assist your attorneys should litigation occur. This list of 22 to-do's can guide your document and data preservation and retention procedures:
1. Identify the staff people most knowledgeable about and experienced with your electronic information systems.
2. Compile all data retention policies, practices and schedules.
3. Identify your backup practices, including tape or other archiving systems.
4. Determine what records or data are at risk of being altered or destroyed. Identify how you can preserve them.
5. Identify any plans to replace or dispose of IT systems, records or data, and when that will happen.
6. Determine what steps are already in place (or planned) to retain hard-copy and electronic records.
Don't be damned if you do OR damned if you don't. With Personnel Records: What to Keep, What to Toss, you'll know — in plain English — the minimum retention period under federal law for each type of personnel record. When it's up, they're out! Access complete records retention guidelines in Personnel Records: What to Keep, What to Toss.
7. Determine whether any third parties (such as vendors) hold information that might need to be preserved. What practices are in place to ensure preservation?
8. Identify any data that may require forensic recovery or preservation.
9. Identify any "metadata”—essentially, technical system data that helps retrieve or catalog your other data—that might be relevant to potential litigation matters. You may need to be able to preserve and produce metadata, too.
10. Identify older software or legacy computer systems that may need special handling to preserve or retrieve data.
11. Identify other electronic data sources such as voice mail, instant messaging and text messages. Litigation holds usually include these as well. Do you use any archival or back-up systems for these applications? Document how you retain and preserve such information.
12. Compile your e-mail practices and policies, including those you may have used in the past.
13. Identify policies and practices concerning employees' personal email accounts and any other computer systems with which your IT systems may interact.
14. Catalog the principal software applications you use now and have used in the past.
15. Identify the electronic formats you commonly use to work with, manage and retain data.
16. Identify existing and past databases that may be relevant to potential litigation.
17. Determine search techniques and technology (including keyword searches and supplementary search capabilities) that you can use to identify relevant data and information.
18. Determine the medium you will use to provide data to opposing counsel and your own attorneys. Possibilities include native and quasi-native file formats, CDs, DVDs, external or thumb drives, FTP and so forth.
19. Determine whether you have the ability to deliver digital document images rather than paper copies.
20. Catalog documents and data that would reveal trade secrets and confidential or privileged information. You'll want to segregate that information.
21. Identify any records or data subject to regulatory prohibitions on disclosure, foreign privacy laws or export restrictions.
22. Determine which records and data could reasonably be deemed inaccessible, and be prepared to explain why you can't deliver them. That might include prohibitive expense or other undue hardship considerations.
If you apply these guidelines now—before an opposing attorney declares a litigation hold—you'll be prepared to respond swiftly. You'll also make it easier for your attorneys to defend you. And you'll make it much less likely that a court will find that you unreasonably altered or destroyed records and data.
You need a system you can trust. A foolproof system. A clear, step-by-step system that makes sure you can keep what matters, toss what doesn't and maintain everything efficiently.
Fortunately, you don't have to invent that system through trial and error. It already exists and it's already been tested by HR teams and lawyers alike and gotten high marks from both.
The companies using this keep-and-toss system breathe easy. Personnel records never pile up, penalties never arise and when lawsuits do, they have exactly the right documents to defend themselves and stop the meter on legal costs — fast. Their secret? A foolproof system...
Get a foolproof records retention system for yourself and your organization. Get Personnel Records: What to Keep, What to Toss today!
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