If you and your employer become embroiled in an employment dispute that cannot be resolved amicably or with the assistance of the Equal Employment Opportunity Commission, you may find it necessary to bring a lawsuit against your employer. Just because you file a lawsuit does not mean that your case will be heard quickly, however. Depending on the complexity of the case as well as other relevant factors, it can take months or even years before your case makes its way to the courtroom.

This delay would not necessarily be a problem except that the delay it takes for your case to be filed and wind its way through the civil court system evidence that is crucial to your case can be inadvertently lost or destroyed. You have control over evidence in your possession (most importantly, make multiple copies of relevant e-mails, documents, photographs, and other similar evidence and keep these backup copies in multiple safe spaces), but what can you do to preserve evidence that might be held by your employer?

What Your Employer Must Do as a Matter of Law

To begin, your employer may have an independent legal obligation to preserve certain documents and evidence. If your employer creates a document or other item of evidence "in anticipation of litigation," your employer may not destroy that item and must take reasonable measures to protect it from loss or destruction until either a lawsuit has been completed or the statute of limitations for filing a lawsuit has elapsed. For example, in a harassment case, an internal review conducted by company personnel designed to render an opinion as to the company’s potential liability would be considered to have been prepared “in anticipation of litigation.” The employer’s duty in regards to this evidence requires the employer to preserve this evidence for later use at trial if necessary.

What Can Be Lost if You Do Not Act Quickly

Routine evidence that may be helpful to your case but that is not “prepared in anticipation of litigation” need not receive any special consideration or attention from the employer until the employer has been served with a court order directing otherwise. If e-mails, security camera tapes, and files are regularly and routinely moved and/or destroyed after a specific period of time, an employer may follow this policy until it receives notice directing it to preserve these items. For example, some video security systems continuously record what occurs on the employer’s property and will “write over” footage that is more than 180 days old (so that it is not using up an infinite amount of data space). If appropriate steps are not taken quickly, this evidence may be lost forever.  For more information about preserving evidence contact an experienced Phoenix employment attorney.

For employment dispute plaintiffs, this means they should:

·         Have a general knowledge about the data storage and retrieval systems of their employer. How long are e-mail messages archived? When do security cameras begin recording over existing footage? Are company files destroyed after five years?

·         File your employment lawsuit as soon as possible as this reduces the chances that important evidence will “disappear” or be destroyed unintentionally.

·         Serve a preservation notice to the employer after your case is filed. Your notice should specifically state the item or items of evidence you are requesting to be preserved (the type of documentation you are seeking as well as the approximate date or dates the evidence was created). While you should be as exact as possible, it is permissible (and even encouraged) to direct the employer to preserve "any and all other evidence" other than the evidence you make mention of in your notice.  By Chris Ariano, attorney attorney at Ariano & Reppucci, PLLC.