When discrimination charges go to court, both sides are entitled to copies of all relevant evidence. That includes memos, notes and e-mail (with some exceptions for confidential, trade secret or attorney-client privileged communications).
Don’t think you’ll be able to avoid liability by getting rid of some documents. The fact that documents are suddenly unavailable will greatly interest the employee and her attorneys, who will gladly contend that the missing paperwork is evidence that you have something to hide.
Before destroying any potential evidence, discuss the matter with your attorneys. Better yet, develop a comprehensive retention-and-destruction policy now, before there’s any question about what to toss and what to keep.
Recent case: Mary Buckley, who is black, worked for the Drug Enforcement Agency (DEA) as a special agent for more than 30 years until she retired. During her career, she had been party to a class-action lawsuit against the agency. A federal court ruled that the DEA had discriminated against black employees and ordered it to change its promotion practices.
Years later, Buckley alleged that the DEA still had a discriminatory promotions process. Shortly after, she was removed from a promotion list on which she previously had been the top-ranked candidate. She sued, alleging retaliation.
Sometime after she filed her lawsuit,apparently destroyed some e-mails among supervisors. Buckley thought those messages might have shown they colluded with one another to knock her off the promotion list. The DEA said the destruction was innocent and not an attempt to cover up or avoid liability.
The 4th Circuit Court of Appeals ruled for Buckley and sent the case back for a trial. There a judge will have to let the jury decide whether the DEA’s e-mail destruction was a deliberate attempt to get rid of documents that might have been relevant. (Buckley v. Mukasey, No. 07-1195, 4th Cir., 2008)
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