In situations where an employer can reasonably anticipate a lawsuit there is a legal obligation to preserve evidence that may be relevant to the case. Failing to do so can have serious consequences. These consequences can range from jurors being instructed to assume missing evidence was unfavorable to the employer, all the way to dismissal of the employer’s entire defense.
Under what circumstances is an employer expected to preserve evidence? Companies should err on the side of caution, and the following situations are strong signs that a lawsuit might be coming:
- A workplace injury
- A disputed suspension, termination, or demotion
- Notice from an attorney outlining a claim
- A complaint from a state or federal agency
What evidence does the employer have an obligation to preserve? Employers might be required to maintain and or make available such as:
- Pictures
- Video
- Equipment
- Physical Documents
- Electronically Stored Information (ESI)
Likewise, there is growing attention on an employee’s obligation to maintain evidence in his or her own possession that might be relevant to their lawsuit. This is particularly true when it comes to electronic evidence and or statements that might have been made via social networking.
Both employers and employees need to consult early on with their council regarding the important issue of evidence preservation.
