Labor and Employment

Preserving Emails if Litigation is Likely

Virtually every American workplace relies upon the convenience and immediacy of email communication. Although in larger workplaces, the number of emails generated on a regular basis can number into the millions, email communications are treated no differently from other documents under federal rules governing lawsuits.

This means that an employee suing an employer for discrimination or retaliation may demand that the employer deliver to her all email communications relevant to her claims and that the employer will be responsible for producing the records. It also means that employers may be liable for improperly failing to preserve email messages that are relevant to pending or future lawsuits.

Email Retention Policies

Once an employee deletes an email, it is usually still preserved for a time on the employer's network or on backup tapes of the employer's network. Employers typically have email retention policies that determine when a backup tape is overwritten or how long email records are retained. Employers facing potential employment litigation may not proceed as usual pursuant to their email retention policies. Instead, they must take affirmative steps to preserve relevant information.

Recently, a federal court severely penalized an employer for failing to preserve email communications that were relevant to an employee's discrimination lawsuit against the employer. Despite being instructed by legal counsel to retain all email communications that were potentially relevant to the pending lawsuit, employees deleted important email messages. Although the email messages had been preserved on backup tapes, the employer inadvertently recycled the backup tapes, thus deleting the stored information.

The federal court determined that the employer had wilfully deleted email messages that it was duty-bound to preserve. Thus, the court found the employer liable for "spoliation of evidence," which is the destruction of or failure to preserve property for another party's use as evidence in a pending or reasonably foreseeable lawsuit.

Because it found the employer guilty of spoliation, the court instructed the jury that it could infer that any deleted email messages would have been unfavorable to the employer. Furthermore, the employer was instructed to pay the employee for re-deposing several key personnel after other emails that had not been deleted, but misplaced, were delivered to the employee two years late by the employer.

In a separate, non-employment related action, a tobacco company was recently required to pay $ 2.75 million in sanctions for deleting email messages relevant to a pending lawsuit after a court had ordered the company to retain all relevant email communications. It did not matter that the deletion of the email messages was pursuant to an automatic deletion policy that the company had had in place for some time. The court found that the company was required to take affirmative measures to preserve the evidence.

Typical Employer Obligations when Litigation is Anticipated

The court in the employment discrimination action held that employers reasonably anticipating litigation are under an obligation to:

  • Suspend their routine document retention or destruction policies and put in place a "litigation hold." This hold applies to accessible backup tapes, as well as to active email communications
  • Communicate with their counsel to ensure the retention of relevant email messages
  • Instruct all employees to produce electronic copies of their relevant active email files.
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