15 May Best Practices in Records Retention & Litigation Holds
Under federal law, private sector employers who regularly employ more than fifteen employees in a given year have statutory and regulatory obligations to preserve records related to their hiring and employment practices.
Employers should ensure they have a comprehensive document retention policy that explicitly describes:
- The records that employees, supervisors, and managers should keep;
- Sets forth the length of time that such documents should be retained;
- Includes instructions for where and how to keep different files;
- Describes the types of files that need not be retained.
The policy should also specifically address both electronically maintained and hard copy documents. Employers should ensure they have adequate storage solutions that provide accessibility to its electronically maintained records, including their metadata.
The employer’s automatic and routine document destruction policy must be suspended, however, when litigation is pending, threatened, or reasonably anticipated. You may be put on notice of this obligation through:
- Lawsuits, subpoenas and other legal process
- Agency actions, and administrative charges
- An attorney’s demand letter (or similar pre-litigation communication) threatening litigation and/or demanding the preservation of documents
You are obligated to preserve electronically maintained and hard copy documents that relate to the pending or anticipated litigation at the time the obligation is triggered and thereafter.
To meet your obligation, you should:
- Understand how documents/data are retained and stored throughout your organization.
- Determine relevance by considering the: (i) subject matter of the claim; (ii) legal issues raised; (iii) time frame implicated.
- Identify and communicate with the custodians of the records
- Issue a litigation hold.
- Monitor the litigation hold and periodically remind custodians of their obligations.
- Document your preservation efforts.
Failing to properly preserve relevant documents can result in a variety of sanctions (e.g., attorneys’ fees, considerable monetary penalties, exclusion of evidence, adverse inferences, and dismissal of claims).
MWH offers tactical solutions for clients who want to ensure their legal obligations are met regarding document preservation.
This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.
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