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‘My lawyer will be in contact’: Enough notice to preserve records

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training

A New Jersey appellate court recently granted a new trial to a former Paine Webber employee who claimed the company fired her for filing a sexual harassment complaint.

During trial, the employee claimed Paine Webber withheld or destroyed critical documents, including records of the investigation into her complaint. While a lower court didn’t allow her to tell the jury about the missing records, the appeals court overruled that.

The court pointed out that the employee, upon termination, told management that her attorney would be in contact. That was enough notice to trigger the employer’s duty to preserve the documents pending filing of a lawsuit. A jury could view destroying them or otherwise “losing” them as evidence they contained information helpful to the fired employee.

Advice: Establish a record-retention plan that complies with New Jersey and federal laws and court rules. The federal court system recently laid down new discovery rules about which electronic documents employers must keep. Review your retention plan with an attorney now to avoid trouble later. You can read the new rules at www.uscourts.gov/rules/congress0406.html. 

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