by Toni Everton
With the increased use of electronic communication and documentation, the preservation of electronically stored information (ESI) is increasingly important, particularly if your company is named as a defendant in a charge filed with the Equal Employment Opportunity Commission (EEOC) or a lawsuit. So how good is your company’s system? 
The need for a data preservation policy
In our technologically advanced world, where the majority of, if not all, documents are stored electronically, many companies are implementing paperless procedures. The days of paper being stored in manila files inside file cabinets are disappearing, making the preservation of ESI imperative. It’s becoming more common for employment documents such as job applications, handbooks, and training documents to be computerized. And the amount of information being communicated electronically has increased.
As the U.S. District Court for the Northern District of Illinois pointed out more than 10 years ago in Byers v. Illinois State Police, “Many informal messages that were previously relayed by telephone or at a water cooler are now sent via e-mail. Additionally, computers have the ability to capture several copies (or drafts) of the same e-mail, thus multiplying the volume of documents.”
Do you have a document retention policy?
The first question to be answered is, “Does your company have a data retention policy?” Upon receiving an EEOC charge or notice of a lawsuit, a company must maintain its electronically stored documents. But you shouldn’t wait until an EEOC charge or a lawsuit is filed before you implement a document retention policy. By the time an EEOC charge or a lawsuit is filed, critical documents may have been deleted by the custodian of your information systems. It’s a good practice to have a document retention policy in place.
When determining what to put in your document retention policy (or when reviewing your current policy), consider the following:
- How much data is being retained—only what’s in employees’ e-mail in-boxes or also what’s in their “Trash” and “Sent” folders?
- How are attachments in e-mails stored?
- Are documents stored in data systems other than your e-mail system being retained?
- How long is ESI retained?
- Where is ESI retained?
- Are hard copies of documents being retained? Where?
- Who is responsible for ensuring that employees are adhering to the data retention policy?
A good data retention policy should also include regular backup of the data on employees’ computers. The data preservation policy should adequately describe the type of documents and data to be preserved (including hard-copy documents and e-mails), the systems to be searched if a lawsuit is filed, the method of preservation, who is responsible for issuing the document preservation order, the procedure for identifying and notifying data custodians, and where the documents and data (including backup tapes) will be preserved to avoid unintentional destruction.
Employee training and follow-up is key
A data retention policy is only effective if employees are following your document storage procedures. Once you have a document retention policy in place, you should train all employees on document retention. Furthermore, even if your company isn’t involved in litigation or you don’t anticipate litigation, you should periodically remind employees of your document retention policy and review their computers to ensure they are properly preserving data.
For example, are employees storing data on their desktops that isn’t included in periodic backups performed by the company? If so, you should have them transfer the data to a system that’s subject to backup or print the ESI and store it in a paper file.
Why should you be concerned about data retention?
Many readers are probably thinking, “My company isn’t involved in a lawsuit, so why should I care about our data preservation policy?” A company’s duty to preserve documents begins before a lawsuit is filed. The U.S. District Court for the Southern District of Indiana noted last May in Malibu Media, LLC v. Tashiro that “a party has a duty to preserve evidence when it knows, or should have known, that litigation was imminent.”
Understandably, it would be cumbersome to save every piece of paper or every electronic document or e-mail. However, at a minimum, your company should ensure that all electronic and hard-copy data is being preserved for any employees you believe may file an administrative charge or a lawsuit in the near future, either because they are disgruntled or you anticipate releasing them from employment.
Depending on the type of discrimination he alleges, an employee may have 300 days (almost one year) from the date of the alleged discriminatory action (usually termination) to file a charge with the EEOC or a state administrative agency. If your company hasn’t made an effort to ensure that the hard-copy documents and ESI relating to the employee have been preserved, you may have lost information critical to your defense of the charge.
Bottom line
Don’t wait until your company has received an EEOC charge or a lawsuit to review your data preservation policy. Review your policy now, make sure your employees are aware of and trained on it, and check from time to time whether they are following it. It’s better to proactively preserve data and documents than to discover, after an administrative charge or a lawsuit is filed, that key documents are missing and your defense has been compromised.
Toni Everton is an attorney with Faegre Baker Daniels LLP in Indianapolis, Indiana. She may be contacted at toni.everton@faegrebd.com.