HAWAII EMPLOYMENT LAW AND LITIGATION BASICS: HOW DO I DRAFT A LITIGATION HOLD POLICY AND IMPLEMENT A PLAN FOR ELECTRONIC DISCOVERY?

HAWAII EMPLOYMENT LAW AND LITIGATION BASICS: HOW DO I DRAFT A LITIGATION HOLD POLICY AND IMPLEMENT A PLAN FOR ELECTRONIC DISCOVERY?

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.

1.       Ensure the Company Buys Into What is Needed to Comply With the New Discovery Rules and Allocate Sufficient Resources.

Convince other managers/decisionmakers to make retention policies/electronic discovery planning a key initiative.  Those employees need to understand and appreciate the risks of court-ordered sanctions for the improper destruction of documents or electronically stored information.

2.       Understand Basic Retention/Hold Issues.

Understand that a litigation hold is required when: (1) The Company receives a demand to preserve the record(s); (2) the Company is aware that a lawsuit or administrative action has been filed; (3) the Company receives a preservation order from the Court, OR; (4) litigation is reasonably foreseeable.  Understand that a record is stale and therefore subject to destruction where the record no longer has any operational, business or legal value to the Company, any applicable retention period(s) has expired AND the record is not subject to a litigation hold.

3.       Draft and Review Policies on a Regular Basis.

Draft appropriate policies, such as retention and computer usage policies, and communicate with and train employees on them.

Understand that a retention policy should limit how long information is kept and that "business related" documents generally should be retained at least for the amount of time established by statute.  A document is "business related" when it documents a specific business related event or activity, it demonstrates a specific business transaction, supports facts of a particular business related event, activity or transaction, or it relates to specific legal, accounting, business or compliance issues.

4.       Have a Plan to Preserve Documents.

Understand when preservation obligations are triggered and work with your IT department, Administrative and Executive personnel to formulate a plan. The goal should be to incorporate necessary retention requirements with organizational needs to establish not only a retention policy, but also a policy regarding the manner in which documents will be stored or organized when the hold arises.

Ideally, the Company should have a response team in place when preservation obligations are triggered comprised of individuals from various departments within the organization such as Human Resources, Information and Technology and Administrative.

Fed. R. Civ. P. 26(a)(1)(B) and 26(f)(3) now require parties early on in a case to disclose the category and location of electronically stored information and the forms in which they would be produced as part of the mandatory disclosure process.  Accordingly, it is important to be prepared early on in a case to specifically discuss with your attorney preservation issues, network systems, procedures, storage, and locations of potentially relevant electronically stored information.

5.       Understand that "Electronic Evidence" May Reside Not Only on Computers, But on Other Electronic Devices.

Information Technology (“IT”) professionals need to understand more than the technical side of computer network and Human Resource managers need to know more about the technical side of the computers/devices used by employees. IT should be able to help you determine to what extent "Instant messaging," home computers, laptops, PDA's, flashdrives, floppy disks, CD ROM's, voice mail and similar devices both retain and communicate electronic/digital information.

On the other hand, understand that the IT department might not be aware of every server, hard drive, and file location and the impact the discovery rules may have on IT-driven policies/procedures.

 6.       Have a Response Team Prepared at all Times.

A response team should be comprised of individuals from various departments within the organization.  The team should also communicate early and often with legal counsel.

7.       Educate/Train Employees on the Importance of E mail.

Electronic mail essentially launched litigation into unknown territory that many employers have still not addressed with policies and/or training.  One of the best steps you can take is to educate and train your employees on the potential that e-mail will be the "smoking gun" or at the very least used against them. 

Employees think that when they delete an e-mail from their computers, it is gone and erased for good.  Of course, that is an incorrect assumption.  Employees need to understand that e-mail is not private, and that the employer reserves the right to inspect and view employees’ e-mail and on-line activities at work.

8.       Understand the Impact Metadata will have on the Production Process.

Fed. Rule Civ. P. 34(b) permits the requesting party to specify the production format for electronic documents. When the production format isn't specified or if the responding party objects to the requested format, the responding party must state how the information will be produced.  The default production format may be a form (or forms) in which the information is "ordinarily maintained" or in a "reasonably usable" form. 

The federal discovery rule changes may not promote self-regulation.  Courts will likely get involved very quickly in discovery disputes involving electronically stored information.  The issue whether the producing party must allow metadata to be viewed by the requesting party may have to be decided by the Court since the issue is relatively unchartered area.

Roman Amaguin, Esq; romanamaguin@yahoo.com; www.amaguinlaw.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.