Tom Brady is one of the best quarterbacks in NFL history, but he fumbled big time when he ordered the destruction of his cell phone before he was to be questioned about his involvement in the deflation of footballs during last season’s AFC championship game. Importantly, prior to the phone’s destruction, NFL investigators had asked Brady for text messages and other electronic information stored on his phone. Although he continues to deny any wrongdoing, the NFL upheld his four-game suspension, concluding that his destruction of the cell phone proved he wanted to hide incriminating evidence of his involvement in the scandal. 
Destruction of evidence—often referred to as “spoliation of evidence”—refers to the destruction of documents, information, or other tangible items that are potentially relevant to a claim before the other side has had an opportunity to review the evidence. Spoliation of evidence can have dire consequences for offenders. As a result, employers should know the when, what, why, and how of preserving evidence to avoid liability and ensure a fair playing field.
When to preserve
In employment cases, the duty to preserve relevant records, documentation, and other evidence may arise when an employee files a discrimination charge or lawsuit against an employer. In certain instances, however, the duty to preserve arises even earlier if the employer has a reasonable basis to believe that the employee may pursue legal action against the employer. Thus, an employer should implement measures to preserve relevant evidence as soon as it reasonably anticipates that the employee may file a claim.
What to reserve
Generally, employers must preserve any evidence that is relevant, which means it tends to prove or disprove any material fact in dispute. In determining what may be relevant, employers should cast a wide net and preserve all information that may reasonably be related to the employee’s claim, including but not limited to the personnel file of the complaining employee, correspondence between the employee and employer (or co-workers), and the personnel records of any employees who are similarly situated to the complaining individual.
Of course, the duty to preserve evidence doesn’t just apply to official personnel records or paper documents kept in desks and filing cabinets. Relevant evidence also may be housed on network servers, laptop and desktop computers, smart phones, e-mails, text messages, voicemail, and other electronic devices.
Why to preserve
As shown in the case of Brady’s destroyed cell phone, spoliation of evidence may lead to an adverse inference of guilt. In other words, if a court concludes that a party has destroyed evidence, the judge may instruct the jury that the missing evidence would have been incriminating. Spoliation of evidence also may subject parties to financial penalties, exclusion of relevant evidence, and dismissal of defenses.
How to preserve
So now that you know the when, what, and why of preserving evidence, you will need to know how to do it. Usually the first step in the preservation process is to issue a litigation hold letter to those who may have custody of relevant information, which should include the employee’s supervisor and IT personnel. When asking custodians to preserve evidence, you should provide a broad description of the types of documents and other information that must be preserved and follow up as needed to ensure the appropriate measures have been taken. Based on the individual circumstances of your case, you also may want to collect electronic devices for safekeeping or have a virtual image made of a device’s hard drive to avoid the alteration or destruction of electronically stored information and its metadata.
In addition, you should instruct your business’s IT personnel (and the material witnesses) to suspend any automatic destruction policy and forego the routine purging of e-mails or other data. Although malicious spoliation of evidence is clearly wrong, even the negligent destruction of evidence may result in sanctions if the employer was on notice of a potential claim but failed to suspend its document-destruction policies. Therefore, if you are put on notice of a potential claim, you should immediately notify the appropriate personnel to suspend your business’s routine destruction protocols to avoid the inadvertent destruction of relevant evidence.
As Tom Brady can surely attest, spoliation of evidence may undermine your business’s ability to defend itself in a lawsuit and cast doubt on your credibility in the process. To protect yourself, at the first sign of a claim, immediately seek guidance from experienced employment law counsel. Working together, you can assess your business’s duty to preserve evidence and develop a winning game plan for identifying and preserving relevant information.
