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New Jersey Human Resources Topics of Interest to the HR Industry in New Jersey

THE EMPLOYER’S DUTY TO PRESERVE “ESI”

Posted in Employment Policies

Several recent federal decisions have made clear that a party to a lawsuit has an obligation to preserve electronically stored information (“ESI”) that may be relevant to the action. 

 

And if this “action” is one brought by an employee against his employer for discrimination, harassment, wrongful termination or the like, the action (or threat or an action) triggers the employer’s duty to preserve. 

 

The duty to preserve ESI cannot be taken lightly.  In fact, severe sanctions have been imposed for failure to take necessary steps to prevent destruction of relevant evidence, even when the evidence (e.g., emails) were deleted as part of a standard computer back-up system.

 

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It is extremely important for employers to be aware that if they are named as a party to a lawsuit or if they have notice that they may be made a party to a lawsuit, the obligation to preserve potentially relevant evidence is triggered.

 

The duty to preserve, once triggered, applies broadly to “all documents and tangible things” and would include all types of electronic data including, but not limited to, emails, computerized records, voicemails, video surveillance, computer back-up tapes, etc.

 

Whether or not such information is “potentially relevant” depends upon whether it could have any bearing on the claims or defenses in the action.

 

Notably, to ensure that potentially relevant ESI is not inadvertently destroyed, an employer must institute a “litigation hold” designed to suspend its otherwise routine document retention/destruction policy.

 

When questions arise, as they almost certainly will, as to the breadth of “potentially relevant evidence” and the scope of the “litigation hold,” the employer should consult with counsel and work cooperatively to ensure proper steps are taken to preserve the ESI at issue in the action. 

 

Through this process, Human Resources and outside counsel should work actively with personnel in your IT Department to ensure complete familiarity with the organization’s computer hardware and software systems — along with the data retention framework.

 

These calculated measures should enable you not only to preserve the ESI, but to avoid the possibility of stiff sanctions for inadvertent spoliation.

 

For more detailed information or a sample ESI Preservation Policy, you may email me fcook@foxrothschild.com or call me at 609 896 3600.