Bracing for the E-Discovery Dangers of Employee Status Changes

The goal of the interview should not be to simply determine whether the employee possessed responsive data. It should also reveal where that data is located. For example, a departing employee may reveal during the course of an interview that his or her involvement in the matter was limited to a few short email exchanges with one of the central players in the litigation. Based on that information, the legal team can take steps to preserve those responsive emails while allowing for the rest of the employee's data to be purged pursuant to the organization's regular policies. An interview might also reveal the existence of pertinent paper documents that may also be subject to destruction upon an employee departure.

There are also situations where an employee departure precipitates the need to transfer a legal hold to the person's replacement or somebody else. In these scenarios, interviews with department heads can be especially beneficial for unearthing specific roles and responsibilities to help guide the appropriate transferring of legal holds from one person to another.

Track 

Tracking and thorough documentation should occur at each stage of the preservation process, from the initial detection of an actionable employee status change all the way through the final steps taken. It is especially important that the basis for each decision be recorded. It is not uncommon for accusations of data spoliation from a departed employee to arise several months after the alleged deletion of ESI took place. Rarely will members of the legal, IT or HR team be able to recount from memory what specific actions were taken, let alone why those decisions were made. Moreover, the people involved in those decisions and actions may themselves have left the organization or changed roles, further underscoring the importance of carefully recording all key actions and decisions.   

Should an error in judgment or technical blunder occur that does result in the deletion of a departed employee's data, a judge or regulatory body will be far more merciful towards a party that can demonstrate that a process was implemented in a reasonable, good faith manner.

Automated audit trails provide a very efficient way for documenting processes. Chances are that the process described above will be supported by specific technologies, such as HR systems, legal hold applications, project management software or interview/survey tools. These systems should interoperate with each other and have the capability to automatically create an audit trail, or a record of activities, that can be revisited at any time. Audit trails can relieve organizations of the burden of documenting processes manually, which can be time consuming, error prone and easily neglected.  

Conclusion

Large organizations deal with employee departures and status changes on a near daily basis. Amidst the frenetic activity that surrounds employee movements, it can be easy for companies to overlook the very serious risk of critical information tied to legal or regulatory obligations being inadvertently deleted. By developing proactive, repeatable processes; investing in the necessary technologies; and tracking and documenting all steps taken to protect vulnerable data, organizations can mitigate these risks and ensure that critical information is adequately protected.