Zubulake v. UBS Warburg LLC is considered the standard-bearer of lawyers’ and their clients’ responsibilities to preserve electronic information for litigation. A litigant or potential litigant has a duty to preserve relevant or discoverable information in pending or reasonably anticipated litigation. The Spring 2010 edition of the ABA’s Employment and Labor Relations Law Newsletter has an article entitled, Nuts and Bolts of Ethics in Employment Litigation [ABA membership required to view]. The article discuss what steps a business should take to ensure that all possible information is preserved as early as possible. Here’s six good suggestions for your consideration in defending against your next employment claim.
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Is there an existing preservation/destruction policy, and how regularly are documents and electronic information destroyed?
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Do you need to tell IT to stop destroying certain information"?
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How is data stored? How can you retrieve the information? How would it be preserved? How much would it cost to restore documents?
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Is any cloud computing used?
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Do any employees have access to destroy or alter evidence?
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Provide detailed instructions to all key employees via a preservation letter, instructing them about their obligation to preserve documents, what kind of documents should be preserved, how they should be preserved, and who should be contacted to handle questions.
A good takeaway for business in handling electronic data in litigation or in anticipation of litigation – these are complex issues that need a trained eye. The earlier counsel is engaged, the earlier preservation measures can be put in place to guard against the inadvertent destruction of evidence and the catastrophic sanctions that can flow from it.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.