When a records preservation order is issued, employees face specific obligations to retain relevant information and prevent spoliation. Understanding the scope, timing, and required actions helps protect the organization and the employee from legal risk. This article outlines practical steps employees should take, explains what data is covered, and highlights best practices to ensure diligent compliance.
What Is A Records Preservation Order
A records preservation order is a formal directive, often issued by a court or a regulatory authority, requiring an organization to preserve specific data and documents relevant to a potential or pending litigation, investigation, or audit. The order identifies the types of information to retain, the time period, and any exclusions. Compliance helps ensure evidence remains intact and admissible, while non-compliance can lead to legal penalties, adverse inferences, or sanctions.
Immediate Steps An Employee Should Take
As soon as a records preservation order is received, an employee should document the date and content of the order, inform the designated legal contact, and avoid altering or deleting any potentially relevant data. The initial actions often include notifying the company’s legal department, preserving electronic and physical records, and securing access controls to prevent accidental destruction. Timely action reduces risk of inadvertent spoliation and aligns with the organization’s litigation hold process.
Key actions include establishing a clear understanding of what data is affected, preserving both routine records and backup files, and coordinating with IT to implement necessary safeguards without disrupting daily operations.
Scope Of The Preservation Order
Preservation orders can cover emails, documents, instant messages, shared drives, databases, backups, metadata, and even social media content. Depending on the order, personal devices used for work may also be implicated. The scope may be broad or narrow, so employees should consult the legal contact to interpret which records must be retained. Misinterpretation can lead to over-preservation or gaps in coverage, both of which create risk.
What Data Must be Preserved
Data that falls under a preservation order typically includes any information that could be relevant to the claim or investigation. This may involve created or received documents, drafts, correspondence, calendars, attachments, and relevant metadata such as timestamps and authorship. In addition to explicit items, courts may consider related data that could reasonably lead to discoverable information. Employees should avoid deleting, altering, or anonymizing such data until the order is lifted or clarified.
What Not To Do After Receiving A Records Preservation Order
Do not delete, modify, or otherwise alter potentially relevant data. Do not rely on routine data cleanup or auto-deletion policies if they could affect preserved materials. Do not outsource preservation decisions to untrained staff without legal guidance. Do not disregard the order or wait for a formal complaint to address it. Missteps can create adverse inferences and legal consequences for the employee and the employer.
Documentation And Chain Of Custody
Maintaining a clear chain of custody ensures that preserved data remains authentic and traceable. Employees should document what data is preserved, where it is stored, who has access, and how it is protected. Logs should record actions such as copies made, locations of backups, and any transfers. This documentation supports later discovery and minimizes questions about data integrity or accidental changes.
Coordination With IT And Legal Teams
Effective preservation requires close collaboration with IT and the legal department. IT can implement legal holds, adjust retention policies, and safeguard backups without compromising operational needs. Legal teams interpret the order’s scope and provide instructions on permissible data handling and disclosure. A designated point of contact helps ensure all actions are consistent with the order and company policy.
Potential Consequences Of Non-Compliance
Non-compliance with a records preservation order can lead to court-imposed sanctions, adverse inferences, or contempt of court. Employees may face disciplinary action or legal exposure if their actions contribute to spoliation. Conversely, proactive compliance demonstrates good faith and reduces the likelihood of penalties. Clear documentation and timely coordination with legal counsel are critical to mitigating risk.
Best Practices For Ongoing Compliance
Establish a formal litigation hold process that includes notice, scope definition, data mapping, and periodic reviews. Train employees on how to recognize preservation orders and whom to contact for guidance. Implement technical controls such as automated reminders, immutable storage for sensitive data, and robust audit trails. Regularly test the process through tabletop exercises and adapt to evolving regulatory requirements. Keeping records organized and searchable supports efficient response to future legal or regulatory actions.
Frequently Asked Questions
- Q: Does a records preservation order apply to personal devices? A: It can, if the data on personal devices is work-related and accessible. Follow legal guidance on whether to preserve or segregate personal data.
- Q: How long does data need to be preserved? A: The duration is defined by the order or applicable laws. Preserve for the minimum period specified and during any ongoing investigation or litigation.
- Q: Can data be reviewed for relevance during preservation? A: Yes, under direction from legal counsel, but avoid altering content. Relevance reviews should be documented and performed within defined guidelines.