Find, preserve, and organize the relevant documents

Find and save relevant records

Once litigation is reasonably anticipated, the employer has a duty to preserve relevant documents. This duty is important, and it overrides the employer’s standard information retention and destruction policies.

The employer should retain all written and electronic records related to the employee, any employment actions taken with respect to the employee, or any internal investigation the employer may have conducted.

Employers should retain these documents for two main reasons:

  • First, parties are obligated to preserve relevant evidence. If an employer fails to comply with this mandate, a court can impose a variety of sanctions including jury instructions allowing jurors to infer that the destroyed evidence was favorable to the plaintiff. Other sanctions include dismissal, striking of claims and defenses, monetary penalties and requiring the payment of attorney’s fees.
  • Second, seemingly damaging documents actually might be helpful to an employer’s defense. For instance, if the employer retains records of its investigation of an internal complaint of discrimination, these records, although possibly containing damaging findings, can be used to support the employer’s claim that it took remedial action by promptly investigating the complaint.

With respect to electronic records, it is important to remember that relevant information may be stored offline in backup tapes or in external data sources such as company laptops, PDAs or personal computers used to link into the employer’s IT system from outside the office.

Turn documents over to the attorney

The employer should provide all relevant documents to its attorney. This includes the plaintiff’s personnel file, relevant emails and other communications, supervisor’s notes, other documents related to the transaction at issue, any applicable insurance policies, wage records, benefit descriptions, written policies, and employee handbooks.

The attorney may also want the personnel files of other employees, which may be useful in showing that the plaintiff was treated the same as similarly-situated employees or was terminated, denied a promotion or demoted for a legitimate, non-discriminatory business reason.

Also, the attorney may find it helpful to see the personnel file of any specific individuals accused of harassing or otherwise discriminating against the plaintiff and other relevant witnesses.

Organize key documents

The employer’s attorney may want a chronology outlining the events giving rising to the action, as well as the plaintiff’s employment history before, during, and after these events and other information pertinent to a plaintiff’s claims.

Documents should be legible, complete and properly labeled to identify their source. There may be multiple copies of the same or a similar document, and the source of each copy may matter.