Counsel to Counsel - January 2008 - (Page 2) brief advice Educating Employees LexisNexis Martindale-Hubbell posed the following question to provide a variety of views on this important topic: In light of the new Federal Rules of Civil Procedure, how— and how much—should companies educate employees about their duties in document retention and litigation holds? Neva G. Lusk Member Spilman Thomas & Battle, PLLC nlusk@spilmanlaw.com Peer Review Rated Preventive education is one of the keys when talking to employees about document retention and litigation holds. Employees at all levels should be aware of the fact that threatened litigation may trigger document preservation obligations for the company. Employees must be told to report to a decision maker any threat of litigation, so that persons with authority are aware of the threat and can take appropriate action. Persons with authority to issue litigation holds are helpless if they are not alerted to threatened litigation. Gregory A. Harrison Partner Dinsmore & Shohl LLP greg.harrison@dinslaw.com Peer Review Rated Now that the new Federal Rules have been in effect for over a year, courts are less likely to be forgiving when a party fails to fulfill its electronic discovery obligations, particularly for larger, more sophisticated companies. Companies are best served by being able to show that they have done their due diligence and have put in place a systematic program for communication and education with key information custodians. Such a program should include periodic updates about the need to maintain particular litigation holds. James A. Collura Associate Coats Rose jcollura@coatsrose.com Employee email retention often causes numerous issues. Companies may have, for example, a standard email retention policy for email servers, but employees may not abide by those policies when saving emails on their local hard drives. On individual machines, an employee may have emails saved for five years, another for only 10 days. Employees need to be educated about a uniform company policy for retaining emails, but they also need to understand they may have to save all of their emails if they are flagged as potential custodians in litigation. 02 LexisNexis® Martindale-Hubbell®
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