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Sanctions for Failure to Keep E-mail Records

Once and employee complaint--internal or external--is filed, gather pertinent document, especially e-mail. Err on the side of keep more documents rather than fewer.

February 16, 2006
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Once an EEOC Charge of Discrimination or, for that matter, any internal employee complaint is filed, an employer should suspend its normal document and data destruction policy. All relevant documents--construed generously and broadly--should be retained until that employee complaint or EEOC charge is resolved.

    That was the employer’s difficulty at a company in Maryland where Dino Broccoli complained about his supervisor’s sexually harassing conduct in January 2001. Following Broccoli’s November 2001 discharge, he filed an EEOC charge in February 2002. A lawsuit was later commenced. In the interim, the employer maintained its normal 14-day "deleted item" document purge policy. Former employees had their files completely deleted after 30 days.

    When Broccoli sought discovery of certain e-mail files, his former employer said that they no longer existed. Broccoli sought sanctions.

    Sanctions were granted. Limitations were placed on his former employer’s ability to present certain evidence. A jury instruction allowing the jury to infer an adverse inference against the company was granted. Attorney’s fees were awarded. Broccoli v. EchoStar Communications Corp., 229 F.R.D. 506 (D. Md. August 4, 2005).

    Impact: Once an employee complaint--internal or external--is filed, gather pertinent documents. Twenty years ago, that meant documents. Today, that also means e-mail files. Err on the side of keeping more documents than fewer.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, February 13, 2006, p. 7 -- Subscribe Now!

 

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