As we saw in yesterday’s Advisor, digital discovery is a painstaking—and potentially painful—process. Today, some tips from an authority on the subject, and an introduction to HR data audit checklists.
The Sedona Conference® Institute develops guidelines for electronic document retention and production. Its recommendations emphasize reasonableness and cooperation. Here are some of its suggestions:
Confer early. Parties should confer early in discovery regarding the preservation and production of electronically stored information and seek to agree on the scope of each party’s rights and responsibilities.
Be reasonable. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
Balance cost and need. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard, which requires consideration of:
- The technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information
- The nature of the litigation
- The amount in controversy
Use active data. The primary source of electronically stored information for production should be active data and information. Resorting to disaster recovery back-up tapes and other sources that are not reasonably accessible should be required only if a true need can be demonstrated.
Keep current form. Production should normally be made in the form or forms in which the information is ordinarily maintained.
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How to Stay Level-Headed
How do you keep up with digital data retention—and the 99 other things HR managers need to make sure are done legally and correctly, day in and day out?
Our experts suggest the checklist. Checklists are completely impersonal, and they force you to jump through all the hoops, one by one. They also assure consistency … the same procedures done the same way, every time. That’s vital in the HR setting, where even a hint of discrimination can land you in court.
An excellent source of the kind of checklists you need most is BLR’s best selling HR Audit Checklists.
The book contains multiple checklists relating to recordkeeping and digital information management. One lists 34 types of data, and also covers confidentiality, emergency planning, efficiency, compliance with laws, and safety. You’d probably never think of all of those possible problem areas without a checklist, but with it, it’s a matter of minutes to scan down the list and see where you might get tripped up.
In fact, the HR Audit Checklists binder houses dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:
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Anatomy of a Checklist Packet
What’s in each checklist packet? Let’s take the one on Employee Handbooks as an example.
Before starting the checklist itself, there’s a 3-page overview of legal and practical issues relating to the subject. One issue discussed is how a sloppily written handbook can actually form unintended contracts with employees.
Then the lists turn those issues into actionable items you can check on. Here are three items from the checklist on writing a handbook:
When you can answer “Yes” to all these questions, you’ve skirted a real danger … the possible abrogation of the employer-at-will relationship. But would you have thought of asking them without the prodding of a checklist? Now multiply that “save” into hundreds more like it, and you’ve got a sense of the value of the program. That’s why so many HR professionals use it, and why so many recommend it.
HR Audit Checklists is available for a no-cost, no-risk evaluation in your office for up to 30 days. Click here and we’ll be happy to arrange it.