Client Bulletins

March 27, 2006

Protocol for preservation of electronic evidence:
ONE - When an employer becomes aware that litigation is likely (for example, an employee threatens to sue, OR accuses the employer of acting illegally, OR files an administrative charge or lawsuit), management should immediately notify in-house or outside counsel.

TWO - Counsel and Human Resources should work with management to identify the “Key Players.” At a minimum, “Key Players” will always include the following:

  • The employee(s) making the complaint,
  • All employee(s) accused by the employee,
  • All witnesses to events that make up the employee’s claim or threatened claim,
  • All decisionmakers, including upper-level management who merely “sign off on” a decision, Human Resources, and counsel.


Other individuals who do not fit into these categories may be “Key Players,” depending on the circumstances of the particular case.

THREE - A written “litigation hold” should be placed on any electronic files (including but not limited to e-mails and instant messages) from the key players, including the employee. The “hold” should warn recipients to preserve all such documentation regarding the employee and the relevant subject matter, and the consequences of failure to do so. Employees, including the key players, should be warned that failure to comply with the “litigation hold” may result in disciplinary action, up through and including discharge. See Attachment 1.

FOUR - Counsel and Human Resources should meet with IT personnel to determine how to make the “litigation hold” as automatic as possible so that it is not necessary to rely on individuals – some of whom may not be “computer literate” or, worse, may have a vested interest in destroying documentation – to preserve relevant evidence. In the same meeting, counsel and HR should learn how the employer’s system preserves documentation and take steps necessary to protect that. All Key Players should be warned to refrain from engaging in electronic gossip and warned that such material may have to be disclosed.

FIVE - A separate meeting should be conducted with HR, counsel, and the Key Players who are “decisionmakers.” Management having to make decisions about the employee should make sure that their e-mails and (if applicable) instant messages are written with deliberation and judiciousness. Counsel should be consulted on any employment decisions relating to the employee – this will give the protection of “privilege” to many e-mails and will also ensure that management is acting in the employer’s best interests.

SIX - Counsel should meet individually with each “Key Player” who is not adverse to company and determine how they store e-mails and other electronic information, and get copies.

SEVEN - The employer’s IT department or consultant, in consultation with counsel, should conduct a broad “search” for relevant files and then preserve the results. There is no need to go through these files at this time. Once the employee’s attorney makes a request, a more narrow search can be performed using agreed-upon parameters in the “reserved” file.

EIGHT - Back-up tapes with potentially relevant information should be stored separately and clearly marked so that they are not written over, or “recycled.” Better yet, back-up tapes should be given to counsel.

NINE - At regular, “calendared” intervals, the list of Key Players should be updated based on developments in the case. Counsel should conduct all the steps described above with the new “Key Players.”

TEN - At regular, “calendared” intervals, the list of key search terms should be updated based on developments in the case, and IT directed to expand the search to include any new search terms.

ELEVEN - ALL key players should be reminded of their continuing obligation to preserve electronic evidence at these intervals IN WRITING. Ideally, this would be done once a month; should be done quarterly at a minimum. See Attachment 2.

TWELVE - If the lawsuit is filed in federal court, the attorneys for both parties will be required under the federal rules to meet and discuss how to handle electronic discovery issues. Counsel for the defendant should update the above protocol as needed based on discussions with the employee’s attorney.

THIRTEEN - This protocol should be followed with respect to all litigation and quasi-litigation (e.g., a threat or a charge) until one of the following occurs:

  • Final judgment is rendered in a lawsuit AND the appeal time expires;
  • The case is settled;
  • Final judgment is rendered in a lawsuit AND all avenues of appeal have been exhausted; and
  • In the case of quasi-litigation in which no suit is filed, the longest applicable statute of limitations has expired.


See Attachment 3. And, yes, this means the process can last years.

For efficiency, large companies may want to deal with electronic discovery issues for all pending litigation and quasi-litigation matters in a single meeting conducted quarterly or more frequently. Companies that make minimal use of e-mail or instant messaging may be able to do less than this.

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