Be sure to retain electronic employment documents

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If your company ever faces an employment lawsuit, your documentation could determine whether you win or lose, according to Stephen W. Aronson, a partner in the law firm Robinson & Cole in Hartford. And these days, that documentation may very well be electronic.

Speaking at CBIA’s HR Conference in June, Aronson said employers are being subpoenaed to produce as evidence e-mails, instant messages, voice mail messages, word processing documents, spreadsheets, databases, swipe-card records and other types of electronic documents. In many cases, he said, the documents’ metadata is being scrutinized to determine who saw what, when. An example of metadata is the information behind the “track changes” feature in Microsoft Word that identifies who made each change in a document and when they changed it.

Your electronic files can be subpoenaed even if you’re not the one being sued. Roberta Hublard, HR and safety manager for Rand-Whitney Containerboard, received a subpoena to produce e-mails concerning an employee’s termination. The employee’s ex-wife claimed he deliberately got himself fired to avoid paying child support, and her attorneys wanted to see if they could find evidence in the company’s records to substantiate that claim.

All of this means you need to manage electronic records in the same manner as paper records so they can be retrieved when needed and purged on a set schedule, according to ARMA International, an association of records-management professionals. (ARMA’s Web site, www.arma.org, includes links to best-practices guidelines and other relevant information.)

You also need to be prepared to institute a “litigation hold” — an immediate stop to document purging in anticipation of a lawsuit. If evidence that should have been preserved was destroyed (even unintentionally), it can mean legal trouble, Aronson said. There’s an especially high risk of this with electronic data.

Failure to properly manage electronic documents can be costly. Aronson reported that a $29.3 million judgment was entered against a large financial services company in a discrimination and retaliation lawsuit involving the company’s destruction of relevant e-mails.

He advises companies to implement a retention program for electronic data, with an architecture map (showing where data is stored), litigation holds and training for employees.