Most employers understand that they shouldn’t destroy evidence that may be relevant to litigation. And preserving the correct evidence can be a tricky process to navigate. An employer’s failure to identify what relevant evidence to keep, or by not following the proper procedures can lead to spoliation exposure and penalties.

Spoliation is the destruction of or failure to preserve evidence necessary to a upcoming litigation. For employers, evidence might include personnel files, job applications, or a company’s electronically stored information such as e-mails, computer files and USB drives. Spoliation typically occurs by accident, but sometimes is deliberate. Either way, courts can impose heavy penalties against an employer for failing to meet its obligation to maintain the relevant evidence and information once notice is made.

Although spoliation penalties vary by jurisdiction, they generally range from monetary sanctions to a jury being directed to consider the missing evidence unfavorable to the employer that lost it.  In the most extreme cases, courts will impose sanctions and nullify the defendant’s defense.

How to limit spoliation exposure
A proactive approach to evidence retention will limit spoliation exposure. We suggest the following: 

  1. implement a clear, concise preservation policy
  2. make sure that their employees understand and follow this policy, and
  3. regularly train all employees about the retention policy and procedures

Preservation policies should identify:
• Who is responsible for retaining evidence
• When to retain evidence
• What evidence to retain
• Where to store evidence, and
• How many copies of evidence to keep, if applicable

Having specific procedures allows employees to walk through the process, and it helps ensure that the relevant evidence is securely stored and easily located when needed.

Investing in employee training about a retention policy is critical. Working with legal counsel to develop your company’s policy and training program is recommended. Contact Derek at The Usman Firm for more information about developing spoliation prevention policies for your business.

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