Electronic Discovery and Employment Law

Additional HR Resources Electronic File Retention Learn what you must keep and what you can safely purge E-Discovery and Retention How to deal with e-discovery after a lawsuit or investigation has begun Retention-Retrieval-Destruction Cutting through the confusion of personnel record storage Controlling E-mail Use When you can limit e-mail use and what the NLRB has to say Managing Technology at Work How to limit your liability caused by employee use of technology Workplace Blogging The pros and cons of using social media in the workplace Confidentiality Breaches Reduce security risks from employees working off-site Online Recruiting-Screening Surf the net with care! Legal dos and don'ts for online applicant screening. Employment Law in Your State Latest state legislation, rulings, and requirements for documentation

On December 1, 2006, the Federal Rules of Civil Procedure were amended to include specific provisions for handling electronically stored information.

Audio Conference: Practical ESI Management for HR: Rules for Controlling Electronically Stored Information

The old days: No shred, no foul
The Federal Rules of Civil Procedure govern how we exchange information with our opponents in a lawsuit. Even before a lawsuit is filed, you have an obligation to preserve information that may be relevant if you have reason to expect that a lawsuit may be filed (based on a government inquiry or a nasty letter from a lawyer).

In the dark ages, that was simple. You sent out a memo instructing everyone not to throw away or destroy anything important. When the lawsuit arrived, you made photocopies of everything and gave them to your lawyer. Pretty straightforward.

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More data than you can hit with a stick
Then along came the Internet, and things got complicated. Today, more than 95 percent of business information is generated and stored electronically, and more than half of that never is printed in paper form. Even when it is printed, the paper version contains only a fraction of the information contained in the electronic form — which often includes metadata -- data about when, how, and by whom it was created, modified, viewed, transmitted, and deleted.

To further complicate matters, the same document may reside in several locations in several different formats. The amount of information available is staggering.

In recognition of this complex reality, the Federal Rules were revised. When you suspect that you may be sued, it's no longer enough to print a copy of critical e-mails and put them in a file. You now have a duty to preserve the information in its various electronic formats. If you don't take adequate steps to preserve the data, it may cost you.

HR Executive Answers: Recordkeeping - What to Save, What to Shred

Plan now or you might pay later
If you wait until you're sued or even when you first suspect a lawsuit, it will be far too late. There's too much electronic information in too many places to try to locate and freeze it when you get your first nasty letter from an employee's lawyer. You need to have to plan now for how you'll react when the day comes (and it will come).

First, meet with your IT personnel or vendor and inventory all the possible sources of electronic data. Then develop a litigation plan that identifies who is responsible for what when the proverbial fan is hit.

Second, develop a document-retention policy that sets destruction schedules based on the type of document, applicable legal requirements for the document type, and the realistic business need for the document. Finally, make sure that document-destruction procedures can be suspended quickly when the lawyers call.

Audio Conference: E-Discovery & Document Retention: What Employers Need to Know

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HR Tools for E-Discovery

• Sample Policy - Employment Records
• Sample Policy - E-Mail and Voice Mail
• Sample Policy - Use of Computers and the Internet