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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Court Rules ESI Records Kept Past Statute Of Limitations Still Have To Be Disclosed
Posted by Gregg Mayer on Wednesday, March 26th, 2008
A court recently ordered a company to disclose old employee records even though the statute of limitations – a time period in which a lawsuit may be filed related to those records – had expired.
This is an illustrative case that shows if a company has records – including ESI – within its possession, and those records are relevant to litigation, then the records will have to be disclosed even if the law would have permitted destroying those records earlier.
In Thong v. Andre Chreky Salon, a Fair Labor Standards Act (FLSA) lawsuit filed in 2006, the employee wanted time cards, work schedules, notes and any other reports dating back to 1998. The employer, who had disclosed payroll records, objected to going back for the other records. The employer argued that going back to 1998 was too far. The statute of limitations to bring a claim under the FLSA is three years. Essentially, the employer said it should not have to provide documents past 2003.
The court disagreed in an opinion rendered earlier this year:
This Court finds that the request is reasonably calculated to lead to admissible evidence related to matters other than the alleged FLSA violations, including plaintiff’s claim that Mr. Chreky reduced plaintiff’s work schedule as a form of punishment for resisting his alleged sexual advances.
…
To the extent that defendants have within their possession, custody or control documents – other than payroll records and time cards previously produced – evidencing hours worked, this Court shall order defendants to provide such documents to plaintiff. If, in fact, defendants have no additional documents responsive to Request No. 19, this Court shall require defendants to provide an amended, verified discovery response stating that fact.
In short, even though the company could have destroyed those documents and deleted ESI under the law, when it decided to retain the information, then that information became open for disclosure in litigation. CIOs should consider the implications about unnecessarily retaining ESI for too long.
Posted in: Electronically Stored Information
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