Stored in vast quantities on a wide range of storage media and vulnerable to modification by employees, electronic records are particularly slippery to manage. In an employment case, plaintiff's counsel can easily turn electronic discovery into a silver bullet. Information retrieval can be exorbitantly time-consuming and expensive. An employee's ignorance of procedures, such as a litigation hold, can irreversibly damage a case. Employers must take special care to avoid the appearance of impropriety, which can be especially harmful in light of a judge's adverse inference instruction.

Littler details six steps that employers should take to develop and implement a comprehensive data destruction and retention policy, ensuring that procedures are in place and staff are trained to implement them. In the battle over electronic discovery, employers can defend themselves by taking these steps to the extent warranted by the nature of the dispute, the anticipated cost of litigation, and the amount potentially in controversy.

To read the Littler Report, please click here.