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    Document Retention And Destruction Power Point Document Retention And Destruction Power Point Presentation Transcript

    • Document Retention & Destruction and Employment Law Issues Presented by Leila Narvid Payne & Fears LLP
    • Appendices
      • Checklist: Identifying ESI
      • Employer Records Retention Requirements
      • Sample Litigation Hold and Preservation Letter to Client/Employees
      • Litigation Hold: Initial Document Collection Interview Form
      • Sample Electronic Records Retention Policy
    • Overview of the Requirements of the New E-Discovery Rules
      • Amendments to FRCP Rules 16, 24, 34, 37, 45 (effective December 1, 2006)
      • Purpose: to establish procedures for discovery of electronically stored information (“ESI”) and to authorize courts to sanction parties when electronic data is lost or destroyed
    • Five Broad Areas of an Interrelated Package
      • The parties’ obligations to meet and confer about electronic discovery early in litigation
      • Discovery of information that is not reasonably accessible and allocating costs of that discovery
      • Privilege review
      • Form of production
      • Sanctions
    • The Consequences of Failing to Comply with the Requirements of the E-Discovery Rules
      • The ‘Safe Harbor’
      • “ Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.”
      • NO SANCTIONS IF ESI LOST BECAUSE OF:
      • ROUTINE
      • GOOD FAITH
      • - OPERATION OF AN ELECTRONIC INFORMATION SYSTEM
    • E-DISCOVERY SANCTIONS: COMPANIES THAT MISSED THE ‘SAFE HARBOR’ COSTS AWARDED TO EMPLOYMENT DISCRIMINATION PLAINTIFF LAURA ZUBULAKE AS A RESULT OF HER EMPLOYER’S FAILURE TO PRESENT RELEVANT EVIDENCE AND ITS ATTORNEY’S FAILURE TO COMMUNICATE DISCOVERY OBLIGATIONS EFFECTIVELY AND INSTITUTE AN APPROPRIATE LITIGATION HOLD. ZUBULAKE V. UBS WARBURG, 2004 WL 1620866 (S.D.N.Y. 2004)
    • ZUBULAKE V. UBS WARBURG
      • The Court also granted an adverse inference instruction ordering the jurors to assume emails discarded by UBS after Zubulake filed a complaint with the EEOC would have had a negative impact on UBS’s case.
      • Jury finds that UBS discriminated against Zubulake
      • Awarding more than $29 million in total damages.
    • E-DISCOVERY SANCTIONS: COMPANIES THAT MISSED THE ‘SAFE HARBOR’ (CONT’D)
      • Court fines Philip Morris USA Inc. $2,750,000 for digital discovery abuse and bars testimony of 11 witnesses. U.S. v. Philip Morris USA, Inc., 327 F.Supp.2d 21 (D.D.C. 2004)
      • Court enters judgment for plaintiff plus award of attorneys’ fees for electronic discovery abuse. Metro. Opera Ass’n Inc. v. Local 100, Hotel Employees and Restaurant Employees Int’l Union, 212 F.R.D. 178 (S.D.N.Y. 2003)
      • CEO sanctioned $10,000 for company’s failure to preserve documents after parties spend $1.5 million litigating sanctions issue. Danis v. USN Communications, Inc., 53 Fed.R.Serv.3d 828 (N.D. Ill. 2000)
    • 7 Steps for Finding the Safe Harbor: What Every Employer Should do to Ensure Compliance and Avoid Adverse Consequences
    • Step 1: Understanding your organization’s information technology
      • Collaborate with your I.T. employees
    • Step 2: Create a Detailed Records Retention Policy
      • A records retention policy establishes standard procedures for the retention and routine destruction of records
      • A records retention policy must be grounded in legal and defensible legitimate business-related considerations
      • A policy designed merely to thwart the discovery of ESI will most likely be found to be an act of bad faith and expose the party to significant sanctions and/or monetary penalties
      • A records retention policy also works to limit allegations of spoliation, which is the internal destruction, alteration or concealment of evidence.
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Identify which records are relevant
      • Employment Records:
      • *employment applications
      • *performance evaluations
      • *warnings
      • *payroll records
      • *benefits records
      • *stock records
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Corporate Records:
      • *annual and quarterly reports
      • *financial statements
      • *articles of incorporation/bylaws
      • *minutes of board meetings
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Identify the types of information and electronic data systems in use
      • Emails
      • Any tasks, calendar items, or meeting notices in your email system
      • Word processing documents (e.g., Word, WordPerfect)
      • Spreadsheets (e.g., Excel)
      • Personal database files (e.g., MS Access)
      • Data stored on removable media (e.g., floppies, zip disks)
      • Photographs, digital images or movie files stored on a computer system
      • Messages records on voicemail
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Sources of ESI:
      • backup tapes
      • Cell phones
      • Laptops
      • BlackBerries
      • Instant Messaging Systems
      • Home computers
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Develop a Retention Schedule
      • What are the applicable State and Federal Laws?
      • What are the relevant statutes of limitation?
    • Step 2: Create a Detailed Records Retention Policy (cont’d)
      • Develop Retention Procedures
      • Convert paper documents into electronic records using copiers and scanners
      • Maintain the integrity of electronic records. For example, records can be made “Read Only” to prevent alteration by employees
      • Protect confidentiality of records (computers can be protected using internet security software)
      • Install the appropriate software for archival and destruction of ESI
    • Step 3: Build in a “Litigation Hold” Procedure
      • - Suspend document destruction policies once the duty to preserve is apparent
      • Triggered at the outset of litigation
      • Examples of Triggering Events:
      • The receipt of a demand letter
      • The receipt of oral notification that a complaint might be filed
      • The receipt of a complaint in a case
      • The receipt of a subpoena
      • The receipt of a notice of governmental investigation (EEOC; DFEH)
      • - The receipt of an incident that may give rise to litigation (employee’s oral and emailed complaints of harassing behavior gave employer actual notice to preserve all documents, including email and personnel files - Broccoli v. Echostar Communications, 229 F.R.D. 506 (D.Md. 2005)
    • Step 3: Build in a “Litigation Hold” Procedure
      • In-house counsel should:
      • Send a litigation hold notice to I.T. Department, record retentions manager, all involved persons
      • Notify outside counsel when in-house counsel believes there is an issue including lost or destroyed documents; when the possibility that a duty to preserve has attached ( Danis v. USN Communications , 2000 WL 1694325 (N.D. Ill.) - corporation has an obligation to retain “…experienced attorneys capable of delivering and implementing a suitable document preservation program” in a lawsuit where ESI is a critical evidentiary issue
      • Collect data relevant to the litigation
      • Reissue a memo regarding the “litigation hold” procedure multiple times over the course of the litigation
      • Monitor compliance
    • Step 4: Ensure all Company Employees Understand the Records Retention Policy
      • Disseminate the policy
      • Provide training
      • Schedule regular audits
      • Personal follow-up with key employees
    • Step 5: Hire/Designate a Records Retention Manager
      • Oversees the record retention policy
      • Should be familiar with the company’s I.T. systems
      • The manager is the “go to” person for in-house counsel and HR to manage a swift and effective litigation hold
    • Step 6: Create a Records Retention Committee
      • Members:
      • A Senior Executive
      • Records Retention Manager
      • Member of Legal Department
      • Outside Litigation Counsel
      • Key I.T. Personnel
      • Purpose:
      • Discuss changes in company’s technology
      • Discuss new laws/regulations
      • Discuss status of ongoing or potential litigation
      • Keep minutes of regular meetings (“safe harbor” evidence)
    • Step 7: Preserve a Copy of Former Employees’ Hard Drives
      • Clone an outgoing employee’s hard drive
      • Liggett v. Rumsfeld (2005 WL 2099782 (E.D. Va. 2005)
      • Former employee alleged race discrimination when suspended for 10 days for accessing sexually explicit websites from work. Employee claims either someone had stolen his password and used his computer to access the site, or that a previous user of the hard drive had visited the sites. Employer failed to keep a copy of the hard drive. Court issued a strongly-worded ruling that the employer should have preserved the hard drive data
      • Trade secrets example: Copy of former employee’s hard drive could be used to show if, when and what a former employee may have stolen.
    • The Final Step: Your Records Retention Policy
      • APPENDIX: SAMPLE ELECTRONIC RECORDS RETENTION POLICY