An interesting article located on HRTechNews titled “One deleted e-mail lands company in court” tells the story of how the new “e-discovery” rules are being enforced. Electronic discovery (also called e-discovery or ediscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.

The case discussed in the HRTechNews article describes a lawsuit brought by an employee who claimed she was let go for taking FMLA leave. One of the key pieces of evidence against the employer was a deleted email that explained why the woman was fired. When the employee was fired, her manager sent an email explaining the termination to her department. After she suited the manager was told to save all relevant documents for the coming court proceedings. This email was deleted(the employee got a copy anyway). Although the manager said it was deleted by mistake, the judge ordered the company to be sanctioned, meaning that at trial the jury will be told the company deleted the email on purpose, looking like they were attempting to hide evidence.

In this case the company acted properly in asking the manager to save the deleted email. However by not having a backup plan, and trusting the manager entirely, they took the control out of the companies hands resulting in a damaging sanction. One thing that can be done to prevent this is to make sure that IT is archiving all email messages company wide for present and past employees. Another good tip is to make sure that when an employee is fired or leaves the company, all paperwork and communications discussing that personnel change are copied and put in the employees file. This ensures that in case of a delayed lawsuit, all the information pertaining to that employee is readily available.