GamblingGrowing up, my dad was a huge country music fan. I refused to appreciate this style of music for no other reason than it was what my parents liked. But one song I vividly remember was the Gambler by Kenny Rogers.

The refrain from that song always plays in my mind when it it comes to addressing e-discovery preservation obligations: “You got to know when to hold ’em …”

Having worked with lawyers and business organizations to address e-discovery challenges since 2001, it is easy to appreciate the feeling that “knowing when to hold ’em,” i.e., when should a “litigation hold” be implemented in response to an employment discrimination claim, is analogous to hitting a moving target in the dark. 

This is because there are multiple instances along a preservation time-line of “when” the duty to preserve may arise. Examples include:

  • When an employee files an internal complaint of discrimination or harassment?
  • When a rejected applicant sends a letter threatening a claim for failing to hire the applicant? 
  • When the employer launches an internal investigation?
  • When an EEOC charge is filed? And what happens if the EEOC issues a Dismissal of the charge, but the charging party still has the statutory 90 days to file a federal suit? Is the employer now obligated to continue the preservation during this 90 day period or risk sanctions?

Additionally, an employer’s obligations to preserve information may range from the complaining employee and his or her supervisor, a department, or the entire company.

Further, it is important to emphasize that individual plaintiffs must carefully comply with preservation obligations because Michigan courts have dismissed claims for failing to do so. Gillett v. Mich. Farm Bureau (Dec. 22, 2009) (Plaintiff’s sexual harassment claim dismissed after plaintiff admitted deleting e-mails from a personal account after filing suit).

Additional Thoughts on Getting the Litigation Hold Right – Reasonable Anticipation

The remainder of the Gambler’s refrain explains that one also has to “know when to walk away and know when to run.” Unfortunately, employers and employment attorneys do not have the option to walk or run away when e-discovery preservation goes wrong in litigation (which happens more than it should).

It is, therefore, important to focus on the “what” should be preserved and “when” preservation is required. The general rule for when this hold must be implemented is when litigation is “reasonably anticipated.” But there is no bright-line rule as to when a party crosses this threshold. Therefore, determining whether a party should reasonably anticipate litigation is a fact-intensive inquiry. 

Once that threshold is crossed, however, there is almost always more value in taking a conservative view as to “when” a litigation hold must be implemented as well as what must be preserved. Additionally, experienced counsel should be able to work with in-house counsel and management to implement a defensible, yet cost-effective preservation plan.   

Two remaining considerations when it comes to implementing the hold: 

  • The litigation hold notice should be issued to all record custodians/employees reasonably likely to have information relevant to a claim. Also, these “key players” may include outside vendors; and
  • An employer should cautiously work with its legal counsel to determine if the employer’s IT professionals should actually carry out the litigation hold process for electronic data (e.g., databases, e-mail accounts, computers, cell phones PDAs, or on flash drives) as well as with regard to taking control of backup tapes and stopping any automatic overwriting of electronic data of such preservation should be conducted by a retained expert/technology trial consultant. 

The litigation hold process should be created in collaboration with management, IT professionals, and experienced legal counsel. If you have questions about litigation hold practices, the attorneys of E-Business Counsel have worked with business clients and employers to minimize legal risks and defense costs in addressing preservation obligations and the litigation hold process in broad range of litigation matters, including employment law claims, product liability, and complex commercial litigation.