Do you have a Preserve and Protect Policy??

MaryB

Am curious who out there has a preserve and protect policy (for email etc) with regards to litigation complaints when you receive notice that a case is on the horizon. Would love to see language or procedure samples. Thanks!

pork1

MARYB: welcome to the forum; I for one need more about your concerns. Are we talking "Privacy", "protection of company procedures", or proprietary processes.

PORK

TN HR

I think what she is referring to, Pork, is preservation and protection of relevant data that would otherwise be destroyed/disposed if it weren't for pending litigation.

We do not have one. I am curious to see what other posters have in place.

Gene

marc

We don't have one either. I have been doing a bit of research lately and the level of destruction has been marked. However, one of the pundits commented that many of the attempts are incomplete because of the incomplete deletion most people do - experts can resurrect many of the records. Then the company is really looking bad when the litigation proceeds. Attempts to destroy the document trail do not play well in the courts - an admission the company thought there was something to hide, and then the evidence itself says what it says.

HRinFL

Or is she talking about a way to protect documents from becoming discoverable in the chance there may be litigation. A little more information please!

MaryB

What I'm looking for are those companies who have freeze and protect policys or procedures in place so that documents/emails can be stored (instead of "accidentally" deleted landing the company in trouble/sanctioned as recent cases such as the United States v. Phillip Morris, 2004 ). This is in the event of foreshadowing of an EEOC complaint or other state agency filing. I'm looking for what your policy is, what you tell your managers and when and how your IT folks partner with you to get this done. Also - what information you freeze and protect (email, PDA's, backup tapes, instant messaging threds) etc.

TN HR

I think it would be impossible to make something non-discoverable as it is not up to you. Your attorney can certainly object to it in interrogatories, but that's about it. If you don't produce, then the other side will simply file a motion to compel and then you're in the situation that Marc described.

Gene

crawfod

ALthough formatting our thoughts through written memos and emails is a convenient way to communicate to others, our attorney's advice is, "If you type something you wouldn't want to later hear repeated in a court room, then don't do it. Go talk directly or use the phone." You won't have to worry about protecting your data if it's not incriminating in the first place.

Don D

"with regards to litigation complaints when you receive notice that a case is on the horizon."

Therein lies the answer to your query. What the hell does it mean to 'receive notice that a case is on the horizon'? That could range from seeing the process server sauntering up the sidewalk all the way to hearing the fat woman in receivables tell somebody her cousin heard someone say a friend heard somebody might be suing you. Would you suggest a company have a policy in place to 'lock down' the computers at that point?

Discovery is discovery. It all will sort itself out. Clever avoidance of discovery depends on what the definition of is is.

MaryB

Don D - just looking for examples of what other folks do out there when they know or suspect a lawsuit. At this point I'm not getting any sense that others have a process or standard. Do you? To answer your what the hell does it mean question - In California employees can get an immediate right to sue notice from the DFEH which means they don't want to have an administrative body decide if their claim was substianted. Thus you get a note from the DFEH indicating that the plaintiff wants a fast track to a lawsuit. Some file and some decide later to give it up. When you strongly suspect or definitely know - there needs to be a process in place. That's what I'm looking for - not hearsay in the hall ways.

HRinFL

[font size="1" color="#FF0000"]LAST EDITED ON 03-10-05 AT 07:08PM (CST)[/font][br][br]MaryB:

There really is no way to have a definite policy in place. All that an opposing attorney can really expect is that you provide whatever documents you have that are not already protected by some form of attorney client privilege. In other words, realistically, you can only provide what information you have available. IF you know that a charge or a lawsuit etc. is coming, take measures to communicate that all forms of communication needs to be retained. Understand, that as was communicated earlier, this can come back to bite you, if you have someone that is not professional in their communications.

It is not reasonable to expect an employer to keep every document, every day, that is created within the act of conducting business. When you are finally sued, give your documents to your attorney, let them decide what needs to be given to opposing counsel, sit back, drink a beer, and play some Buffett.

We create emails when developing policies that are deleted after read and implemented. We change policies based on business needs (I suggest keeping a binder with old policies handbooks, etc. that are given to ees. Also benefit plans, etc. That way you always have a copy of discovery requests). If they ask for it and you don't have it, you don't have it. Chances are they will depose someone with knowledge of the development/policy and that will suffice. Only time you get in trouble is when you delete documents after you are served with requests. Otherwise, take out the trash.

BTW, a fast track to sue is not only in CA. The EEOC can do this at the request of the Charging Party. Can also do at the request of the employer, most cases this requires the Charging Party to agree to that. Doesn't really change anything, except that instead of talking nice to the agency and getting extensions, you are typically going to have to respond to the complaint (lawsuit) in 28 days. I know that documentation is the best way to support the employers argument for why somethiing occurred, but you just have to use your common sense to determine if something needs to be retained.