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Avoiding Spoliation in Employment Litigation: Counsel’s Obligations to Client; ESI Challenges; Sanctions Defenses

This program is cancelled

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, May 15, 2024 (in 14 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

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This CLE webinar will examine how to mitigate the risk of spoliation of evidence in employment litigation and the costly sanctions that could result. The panel will examine the duty to preserve evidence under FRCP 37 and counsel's role in guiding their clients through a litigation hold beyond simply drafting the initial hold notice. The panel will also offer best practices for defending against possible sanctions and how to prepare clients for litigation holds by developing effective document management and retention policies.

Description

With the continued evolution of electronic information and communications systems and the seemingly endless number of applications and software solutions to assist in the workplace, managing document and information retention to fulfill the duty to preserve in employment litigation has become increasingly complex.

The employer's duty is more challenging than ever given the extensive amount of electronically stored information (ESI) managed by employers, the number of possible information custodians, the use of personal devices by employees to perform their jobs, and the prevalence of social media. ESI often becomes the target of sweeping discovery requests, putting clients' document management and retention policies into question.

In-house and outside counsel are responsible for ensuring compliance with preservation and collection requirements beyond the initial drafting of the litigation hold notice. Therefore, it is imperative that counsel become familiar with their clients' information systems and how they manage digital data to effectively guide clients through their duty to preserve to avoid sanctions. Counsel should also be able to assist clients with establishing effective document management and retention policies to comply with litigation holds.

Listen as our expert panel examines the duty to preserve evidence under FRCP 37 with a focus on ESI. The panel will discuss when the duty to preserve begins and how to draft and determine the scope of the litigation hold notice. The panel will address counsel's ongoing obligations beyond drafting the hold notice and offer best practices for avoiding and defending against sanctions.

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Outline

  1. Introduction
    1. FRCP 37
    2. Employer challenges
  2. Duty to preserve evidence
    1. When is the duty triggered?
    2. Counsel's role
    3. Possible sanctions for noncompliance
  3. Litigation hold notice
    1. Scope of information
    2. Key recipients
    3. Drafting considerations
    4. Counsel's ongoing obligations
  4. Sanctions defenses
  5. Client document management and retention policies
  6. Practitioner takeaways

Benefits

The panel will review these and other important considerations:

  • What triggers an employer's duty to preserve possible evidence for litigation?
  • What types of information fall within the scope of the litigation hold notice? Who should be key recipients of the hold notice?
  • What are counsel's ongoing obligations beyond drafting the initial litigation hold to ensure that clients comply with their duty to preserve?
  • What are possible sanctions for spoliation of evidence? What are possible defenses?
  • How can counsel help clients develop effective document management and retention policies?

Faculty

Tripp, Noel
Noel P. Tripp
Principal
Jackson Lewis

Mr. Tripp practices exclusively in employment law and has been involved in matters pending before federal and state...  |  Read More

Additional faculty
to be announced.