Are Employers Still Confused When it Comes to e-Discovery Preservation?

http://ow.ly/5YDrR

Article appering on the Michigan Employment Law Advisor website, written by Jason Shinn.

This article discusses a case  Haraburda v. Arcelor Mittal USA, Inc.(N.D. Ind. 6/28/2011)  in which an HR Dept of the defendant during an EEOC investigation took the following interesting position:

"... files stored on company computers are company property and can be assessed and/or deleted as the company views appropriate."

Since this position has ZERO legal merit under the Federal Rules of Civil Procedure, the court was not amused, and held as follows:

"when "[a party] knows, or should have known, that litigation was imminent" then preservation obligations are triggered and "the party should implement a plan to find and preserve relevant evidence."  The court also ordered the defendant to implement an immediate litigation hold.

The fact that corporate defendant's continue to take a stance opposed to placing a litigation hold, and implement preservation procedures is troubling.  There has been nearly 5 years of case law outlining the requirements of the Federal Rules of Civil Procedure, and the court will be quick to impose sanctions at this point for failure to comply, especially when one party takes a position that is completely contrary to the rules. In addition, it is probably not a good idea to have an HR Department make represenations regarding issues that should be dealt with by in-house counsel and the law department.