• What Documents Do You Need to Keep When a Lawsuit is filed?
  • June 6, 2013 | Author: Clayton T. Cook
  • Law Firm: Porter Scott A Professional Corporation - Sacramento Office
  • If a former employee of your company filed a lawsuit against you, would you be prepared? If the employee’s attorney sent you a letter requesting an extensive list of documents, would you know where to start?

    Many employers can benefit from evaluating their company’s methods of communication and data retention before any lawsuits are ever filed. This can help you determine what types of information will need to be protected if a lawsuit is filed. For example, surveillance footage may need to be saved before it is cycled over, or auto-delete features on email programs may need to be modified to ensure that important information is retained to protect you.

    Intentional destruction of a document after a lawsuit is filed will always be considered willful suppression worthy of an adverse jury instruction, even if direct evidence does not exist. In the case of employers, it is enough for a party to show that similar employees’ personnel records had been preserved while the plaintiff’s records were not, and that the disappearance of the records was covered up by the employer.

    Although you should always retain relevant documents, there are often large amounts of data outside of the standard paper files that will support your position. Text messages, voicemails, and video footage are areas where information retention is frequently overlooked. Social media such as Facebook often contains personal posts that can be crucial to a case. Usually one of the first recommendations given to a plaintiff by their attorney is to remove any damaging information from public sites before the lawsuit is filed. The best way to counter this is for you to preserve that information immediately after you learn about it.

    What if the Lawsuit is Brought by an Employee?

    Employers are required to provide employees with copies of their employment files once a written demand for the documents is made by the employee. Labor Code section 1198.5 provides that the employer must keep former employees’ records for three years after termination of the employment. Prior to January 1, 2013, documents only needed to be retained for two years. The personnel records of current and former employees now must also be kept at the place where the person reports to work, unless another location is agreed upon.

    Current and former employees are not given unlimited access to their personnel information. Former workers can only make one request for their personnel file per year and the employer only has to comply with fifty records requests from employees per month. Employers are also allowed to designate a specific employee who must receive the request, and they can take reasonable steps to verify the identity of the current or former employee before providing the records.

    Employers who do not comply with the requirements can be fined $750. They may also be subject to much larger fees since employees can seek injunctive relief and recover their attorney’s fees and costs for filing those actions. If the employer has a collective bargaining agreement with its employees, these requirements may be different.