Duty to Preserve Documents & Data

Employers and employees alike are obligated to preserve records related to an employee's employment when they reasonably anticipate litigation. This includes physical documents as well as electronically stored information (ESI). ESI includes things like email and text message communications, online policies, and online documentation—including metadata.

If an employer already has a document retention policy that automatically deletes their records, the employer must suspend that policy. Similarly, an employee should take steps to preserve their ESI or otherwise stop automatic deletions.

Failing to preserve evidence once they're on notice about potential litigation can have serious consequences for both employers and employees, including monetary penalties, exclusion of evidence in their favor, and adverse inferences against them.

Employers: The Houk Law Firm can help you create a document retention policy, which should identify records that employees, supervisors, and managers should keep, the method of retention, and the length of time for retention.

Employees: The Houk Law Firm can help you identify the issues that you should preserve ESI about.