While my wife trims the tree this lazy Saturday, I’m enjoying splendid articles by Mark Sidoti, chair of the Gibbons E-Discovery Task Force. That job title gave me brief pause. Oh, no! Have e-discovery costs driven corporations to outsource review to a shrewdness of arboreal apes? As it turns out, Gibbons is a 230-lawyer firm in and around New Jersey (and, yes, a group of apes is really called a “shrewdness of apes.” Don’t you just love the idiosyncracies of the English language?).
Sidoti’s EDD articles can be found on his bio page. One of these discusses the decision in NVE, Inc. v. Palmeroni, where Judge Esther Salas (USDC DNJ) sanctioned the plaintiff for failing to take reasonable steps to preserve relevant ESI pertaining to alleged breach of fiduciary duty by its former employee, Palmeroni. The Court determined that the plaintiff’s obligation to preserve arose when it terminated Mr. Palmeroni’s employment–a time when, the court notes, “litigation was imminent.”
But what about when it’s not manifestly clear that litigation is imminent on separation? Not every reduction in force is a precursor to litigation; in fact, the majority of terminated employees do not sue their former employers. Yet, any labor lawyer or HR person worth her salt would caution an employer to assess the potential for a subsequent suit and initiate preservation if litigation is reasonably anticipated.
That’s sound advice, but it tends to be overlooked, especially when the separation isn’t marked by angry accusations. Most terminated employees slink off without screaming, “You’ll hear from my lawyer!” How do we bring a soupçon of certainty to the preservation process?
I’m no employment law expert, but I wonder if it wouldn’t be sensible for employers to secure a simple signed statement from the departing employee that reads something like this:
I do not contemplate making a claim or bringing a lawsuit against XYZ Corporation arising from my termination or other matters relating to my employment. Accordingly, I have no expectation that XYZ Corporation will preserve information in anticipation of a claim or litigation by me.
It’s not intended to be a waiver of any substantive rights, and for all I know language like that is already in the papers employees sign on separation. If not, it seems like it would provide some cover from a later claim that the employer failed to preserve information. In an ideal world, it would be a mutual declaration, motivating the employer to consider its plans and communicate its expectations, too.
What do you think? Is this already being done in some manner (apart from outright releases of claims)?
Jason Shinn said:
I agree with your position that employers/litigants need to do more or make more informed decisions when it comes to e-discovery preservation.
But I respectfully disagree that a legal hold waiver should be used in the context of departing/discharged employees. I’ve discussed a few considerations supporting my position at my blog post: http://www.michiganemploymentlawadvisor.com/e-discovery/asking-departing-employees-to-sign-a-legal-hold-waiver-is-the-wrong-tool-for-meeting-e-discovery-pre/.
I have, however, incorporated language in release documents after a settlement has been reached confirming that neither party is obligated to continue preservation obligations and that after a date certain normal retention procedures will resume.
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