Electronic evidence is quickly evolving into one of the most difficult areas of litigation to navigate. Hawaii businesses, especially human resource managers in employment disputes, must understand that it is extremely important to work closely with counsel to determine the extent of their discovery obligations. Once the preservation requirement arises, Hawaii businesses must map out a sensible data gathering plan to minimize business disruptions and to avoid possible sanctions. A. WHAT ARE THE BASIC FEATURES OF A RETENTION/HOLD POLICY?
• Provides for the destruction of stale records.
• Provides for the recycling of backup tapes on a regular basis.
• Provides for the suspension/hold of records destruction in appropriate circumstances.
• Describes the circumstances under which the policy is to be suspended (i.e., litigation hold).
• Defines penalties for employees who do not comply.
• Provides for training and retraining of employees.
• Provides for periodic audits and revisions when necessary.
B. WHEN IS A BUSINESS RECORD STALE?
• The record no longer has any operational, business or legal value to the Company;
• The applicable retention period(s) has expired; AND
• The record is not subject to a litigation hold.
C. HOW ARE E MAILS TREATED UNDER A RETENTION/HOLD POLICY?
• Generally, e mails that are unrelated to the Company's business should not be subject to the retention schedules.
• Business e mails are retained in accordance with the Company's retention schedules.
• Non Business e mails should be retained for only a short period, e.g., 30, 60 or 90 days and then expunged.
D. HOW DO YOU KNOW WHETHER AN E MAIL IS BUSINESS RELATED?
• It documents a specific business related event or activity.
• It demonstrates a specific business transaction.
• It supports facts of a particular business related event, activity or transaction.
• It relates to specific legal, accounting, business or compliance issues.
E. WHEN IS A LITIGATION HOLD REQUIRED?
• The Company receives a demand to preserve the record(s).
• The Company is aware that a lawsuit or administrative action has been filed.
• The Company receives a Preservation Order from the Court.
• Litigation is reasonably foreseeable.
F. WHERE CAN AN ELECTRONIC RECORD BE LOCATED AND IN WHAT FORMS?
• Electronic Documents.
• Back up Tapes.
• E mails/Instant Messaging.
• Hard Drives of Laptop and Remote Desktop Computers.
• Servers.
• PDA's, Flash Drives, Voice Mails, Floppy Disks, CD ROMS, Camera Phones.
• Others?
G. WHAT ARE POTENTIAL CONSEQUENCES OF FAILING TO HAVE/IMPLEMENT A RETENTION/HOLD POLICY?
• Monetary sanctions.
• Adverse Inference instructions.
• Dismissal of claim or defense.
• Dismissal of complaint or striking of answer.
• Loss of reputation.
Roman Amaguin, Esq; www.amaguinlaw.com; romanamaguin@yahoo.com
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.
