Everyone knows that you cannot destroy “evidence.” But when does a document or email become evidence? Is it evidence as early as when it is written, or does it become evidence when it is demanded by a party or court? Or somewhere in between?    

Given the meteoric rise in the number of emails sent and the number of documents created, as well as the rapid changes in the nature of (and policies related to) document storage occasioned by a paperless society, the issue of when a document becomes evidence – and therefore when it cannot be destroyed – has become central in the litigation process. In light of recent court decisions regarding the increasing obligations of parties and their counsel with regard to maintaining documents for suits in court, employers would be wise to consider implementing policies that address the identification, preservation, and maintenance of electronic communications, electronically-stored information, and other records in the event of litigation. 

Such policies should address the necessary operational steps and communication process for initiating, implementing, monitoring, and releasing what are called “litigation holds” – or the maintenance of documents because of the existence of a legal matter.  In order to be effective, the policy must be applicable to all employees or members of an organization. It must also "kick in" immediately upon the disclosure to anyone of a (1) potential threat of litigation or, at a minimum, upon (2) a formal notice of a claim, such as a demand letter, charge of discrimination, or the filing of a complaint.  

Upon such notification, the legal and IT departments of the organization should drive the process to, first, identify all sources of information and documents – from both people and machines – that may be potentially relevant to the actual or threatened claim, and, second,. to put in place a “litigation hold,” i.e., a mechanism that will preserve and maintain information in its native electronic form, as well as any relevant "hard copies" of documents. 

The individuals affected by the “litigation hold” must also acknowledge and understand their obligation to cooperate and participate in this process and that their failure to do so could result in discipline up to and including dismissal (since an employer’s failure to maintain relevant documents has increasingly incurred the wrath of judges, resulting in severe sanctions). 

The process should also be monitored by the legal and IT departments throughout its duration. 

Finally, once the need for the “litigation hold” is gone, such as in the event of settlement of or judgment on the claim, the legal and IT departments should release the hold and conduct an audit to ensure that information is not unnecessarily retained. 

Having such policy in place should communicate the organization’s commitment to complying with the law regarding the preservation of discoverable information and the prevention of the destruction of evidence.   

(This entry was in large part researched and written by my colleague Sarah Beth Johnson, Esq., to whom I offer my thanks).