Question of the Week
I manage a company that has several offices throughout Florida. Our employees communicate primarily through e-mail, and many of the company's records are created and stored on our computer systems. We just learned that another company we have done business with is threatening to sue us. I think that many of the communications and records relating to this dispute were in the form of e-mail. What should we do about these records? Should we talk to our employees now or wait to see if a lawsuit is filed?
You should take immediate action to preserve and maintain all relevant documents and records. As soon as a company anticipates that a lawsuit may be filed against it, the company has an obligation to preserve and maintain all documents relevant to the facts and circumstances surrounding the dispute. Your company could face sanctions if relevant documents are lost or destroyed. Even unintentional destruction of electronic information through the ordinary functions of your company's computer system could cause your company to face sanctions from a court.
In addition, records, files, and e-mails stored on your company's computer system must be preserved in their original state or format. To avoid sanctions for spoliation of evidence, companies should thoroughly educate and instruct employees on document retention and put a formal litigation hold order in effect as soon as a lawsuit is anticipated. You should focus especially on IT directors, records managers, and those employees who are likely to have potentially relevant information. Meet with these key employees right away, issue a litigation hold order to all employees who have documents and electronically stored information, confirm suspension of document and electronic information destruction policies, and follow up to ensure compliance with the litigation hold.
Even companies that are not currently engaged in or anticipating litigation should review their document retention and destruction policies and evaluate whether changes are necessary to best protect themselves in case of future litigation.
For more information, please contact Nicole Atkinson.
