Simple Practical Suggestions For Employees On Preserving Data
April, 2007
In earlier articles, we have written about the new federal rules of discovery which require companies and employees to preserve computer and other electronic data. Therefore, this article does not delve into all the legal issues or nuances. Rather, here are some quick, practical suggestions to give to your company’s employees, supervisors and managers. However, later in the event of an incident, follow up with more detailed questions and instructions.
You might try sending this message as an e-mail or office memorandum:
“You may have read in the papers that new federal rules require employers (including all employees, supervisors, managers, officers, etc.) to keep electronically created and/or stored data. This new federal rule also applies to those who prepare information for you such as secretaries, administrative assistants, associates, and others.
This duty starts from the time that you first reasonably anticipate the possibility of litigation. That means you may have to start keeping data even before a lawsuit or charge is filed. The rule applies to data stored on your company computer, and perhaps your own personal computer. It also applies to voice-mails, data kept on disks, drives, tape recorders, handheld devices, electronic calendars and all other kinds of electronically kept data.
If you anticipate there is a possibility of litigation with an employee, vendor or customer, notify Human Resources, the legal department or your supervisor, as the case may be.
However, here are some simple steps to follow in order to help you and the Company:
- Do NOT delete any such electronic data.
- Keep it all in a separate electronic file.
- Remember, same applies to paper.
- Err on the side of caution (that is preservation of data). Do not delete, erase or destroy. Ask when in doubt.
- Print a copy of the data and file it somewhere secure to avoid inadvertent destruction.
- Avoid federal penalties. (If you fail to observe these requirements under federal law, you could make yourself subject to court imposed penalties, i.e., monetary payment, contempt of court.)
- Avoid penalties to the Company. (Your misconduct could result in the same penalties against the Company.)
- Failing to observe these rules could lead to discipline up to and including termination.
- Do NOT retaliate against any employee whom you anticipate will sue the Company or who has sued. (If you retaliate, that also can result in the above penalties.)
Please join the Company in strictly observing these rules.”
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