Wednesday, September 1, 2021

Shredding documents during litigation is a bad, bad idea (a “Worst Employer" nominee update)

Activision Blizzard was my 11th nominee for the Worst Employer of 2021. Among the alleged sins that earned its nomination — a key software developer named the hotel suite he'd use to groom female subordinates "The Cosby Suite."

The hits for this employer just keep on coming. The State of California's Department of Fair Employment and Housing, which is actively investigating Activision Blizzard for having a pervasive culture of harassment and abuse toward its female employees, now accuses the company of shredding documents relevant to the investigation.

Specifically, paragraph 165 of California's amended complaint, alleges as follows: 

[D]ocuments and records have not been maintained as required by law or by the Document Retention Notice, including but not limited to documents related to investigations and complaints [that] were shredded by human resources personnel and emails [that were] deleted 30 days after an employee's separation.

These allegations are damning. It's one thing to negligently fail to suspend protocols that results in the destruction of relevant documents (which in and of itself is enough to get you sanctioned by a court). It's another entirely to take active steps to shred or otherwise destroy relevant documents (which could cost you the case). For its part, the company denies any allegations of the shredding of relevant documents.

Activision Blizzard shows us what not to do in threatened or active litigation. 

Do you know what to do in regards to protecting relevant paper and electronic documents? 

Do you know that as a litigant (real, threatened, or potential) you have an affirmative obligation to stop the destruction of potentially relevant or discoverable documents and information? You accomplish this by employing litigation holds as soon as a claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way to focus your case away from the law and the facts and on to discovery issues (which is never a good thing).

The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:
  1. Describe the pending claim.

  2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

  3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient's control. This task will be much more daunting for an IT manager than an individual employee's workstation.

  4. Broadly define the scope of covered information to include all documents, records, or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person's memory: paper, photographs, maps, diagrams, applications, databases, emails, intranet, instant messages, social media, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company's computers or network systems or any other devices or systems capable of storing electronic information (i.e., phones, applications, storage devices, cloud storage).

  5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

  6. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

  7. Designate one company employee as the point person for any questions about the litigation hold and employees' duties to preserve information and documents.

  8. Alert recipients to the risk to the company and its employees for failing to heed the litigation hold request.

  9. Ensure that the recipient signs a verification signifying the receipt of the litigation hold.

  10. Periodically recirculate the litigation hold to ensure continuing compliance.
Bonus 11th tip: Whatever you do, never, ever, shred documents. 

* Photo by LeeAnn Cline on Unsplash