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The CHRO’s Role in eDiscovery: The Custodian of the Custodians

The CHRO’s Role in eDiscovery: The Custodian of the Custodians

Nothing helps clarify the CHRO’s role in eDiscovery like active or pending litigation.  

The Chief Human Resources Officer or CHRO’s role in eDiscovery starts with understanding the important part HR plays both in preparing for and responding to a legal event. Tracking employee status, roles, locations, departments, titles and more are important routine HR responsibilities. What you might not know is that this same information you track can help your organization quickly and adequately identify employees who may be connected to a given legal event. (In eDiscovery parlance, we call these employees “custodians” of that data needed for litigation.)

Onboarding and Exiting Employees

Key activities like onboarding and exiting processes already get coordinated by your IT teams. These tasks include distributing new equipment, software, and account credentials for onboarding, and revoking and recycling those assets upon exit. Onboards and exits also have a significant impact on the legal event process, and they should be similarly coordinated with Legal (and even more coordinated with IT). For example, new employees might join a product team where the product is the subject of a litigation; in that case, the new employee could have legal preservation needs right from onboarding. For exiting employees, it’s important that IT and Legal take steps to preserve any data subject to legal (or regulatory) retention that might be stored in that exiting employee’s accounts before those assets and resources are destroyed or recycled. This includes server and cloud storage, individual computers, mobile devices, and other such assets.

When Litigation Comes Knocking

Most HR professionals have little experience with or involvement in litigation or eDiscovery processes – at least not until a new legal event pops up. When that happens, HR teams suddenly find themselves thrown into a chaotic process, bombarded with questions and demands for employee lists, documents and more. Don’t let that happen to you or your team. Even if your organization doesn’t routinely experience legal events, a little planning and training can help you avoid that chaos and disruption. Prepare your team to handle their role competently and efficiently, because prepared or not, the day will come when they’ll be forced to play it. Having a simple group discussion with your legal team (or outside counsel) can go a long way toward preparing your team for inevitable legal events ahead.

While HR professionals don’t necessarily need to be versed in the entire eDiscovery process, they should have a base understanding of:

  • how they are managing employee data;
  • how that data they manage could be used in the legal process (and potentially within a litigation directly); and
  • what is expected of them in providing notices to, coordinating with, and making data available to Legal, IT, legal vendors, experts, outside counsel and other players in the process.

HR’s Role in Recognizing Trigger Events

You might be surprised how close you and your HR team are to the frontlines of the legal event process. Indeed, whether you realize it or not, in some instances the entire legal process might be triggered by events that your team alone will encounter before anyone else does.

A trigger happens when an organization first learns of—or has a reasonable expectation of—a legal claim. This can be a lawsuit, regulatory investigation, EEOC complaint or other such legal event. That knowledge in turn “triggers” the organization’s legal responsibility to identify and preserve any information (paper, electronic or otherwise) that might be relevant to that claim. From that “triggering event” flows a series of notification and preservation obligations called the “litigation hold” process. These are the first steps in the legal process. 

There are many instances where your HR team will see such triggering events before anyone else does. As CHRO, you must ensure that your team understands how to recognize triggering events and have a process whereby legal (and other departments like IT if appropriate) are put on notice that the resultant preservation responsibilities have been triggered. If an organization (or individual employee) fails to recognize such triggers and data is lost due to lack of retention efforts, the ramifications for the organization can be significant, ranging from monetary sanctions to case-ending default judgements.

Here are a few of the more common HR-related trigger events (list compiled by recruiter.com):

  • Employment discrimination
  • Worker safety and OSHA compliance
  • Employee privacy
  • Negligent hiring
  • Negligent retention
  • Harassment
  • Retaliation
  • Union relations
  • Copyright infringement
  • Theft of company property (physical or intellectual)
  • Defamation (of an employee or of the company)

The CHRO’s Role in Identifying the Right Employees for Litigation Hold

Once a triggering event occurs, your company must take immediate, proactive steps to identify and preserve any information that might be relevant to the potential legal claims at issue. These early efforts that come at the very outset of a new legal event are what constitute the “litigation hold,” or “legal hold,” process. Such steps include:

  • identifying and preserving information resources;
  • notifying any employees involved that they too need to identify and preserve relevant information; and
  • taking other steps to fulfill the organization’s preservation obligations.

It is in that early litigation hold process where the HR team’s involvement is most critical. It is the CHRO’s duty to set the tone so that the entire HR department understands the importance of this process and fully cooperates with and invests in it. That requires true teamwork not just within HR, but with your Legal and IT teams as well.

HR, Legal and IT should collaborate from the beginning of the litigation hold process (as well as in preparation, training, and pre-planning). Some of the data subject to the preservation obligations discussed above may be easily and quickly identifiable. But ultimately, the employees throughout your organization are your best resources for identifying all potentially relevant data to preserve so that your organization can satisfy its legal obligations. 

Of course, whenever it comes to identifying employees, HR takes a leading role. Identifying the right employees is really the basis of the entire litigation hold process. Items identified here include employees’ roles, departments, locations, titles and more – all of which are key metrics routinely tracked by HR. Thus, it should be clear just how important a role HR plays in setting any new legal event process off on the right foot. (By the way, your current or former employee records themselves could be subject to preservation and collection in certain legal or regulatory matters.)

Guidelines for the CHRO & Team

Stay Informed.  When the initial litigation hold notice is sent (usually by Legal) to custodians, simultaneous notifications should go to IT and HR as well so that all key teams keep fully involved and in the loop.

Stay Connected. Many legal hold solutions today can integrate with HR and IT systems to keep everyone fully connected by doing things like:

  • directly integrating with many HR and IT systems, making it easier for HR and Legal to search for and identify relevant employees;
  • automating litigation hold efforts; and
  • automatically notifying IT when HR changes the status of an employee. 

Stay Organized. Keep your HR data as up-to-date as possible. Eventually, everything loops back to HR as a primary data source for employee information, so a well-kept HR system is critical for litigation. Like with anything, the more accurate your information, the easier and more effective your litigation hold process will be.

Be Proactive. Create routine reports of new employee onboarding or exiting employee events that are shared with HR, IT and Legal. (Better yet, automate them.) It’s important that IT know, for example, if an employee subject to a litigation hold has left the company. That way, IT can take steps to preserve that former employee’s data before it is destroyed or their equipment recycled.

Last but not least, given all of the responsibilities listed here, it’s clear that as CHRO you should have a seat at the table whenever your organization considers implementing any new eDiscovery solutions, so you can help manage or automate any of those tasks.

Be Prepared.

The CHRO and HR department play essential roles in any legal process—from identifying critical players and involved employees, to holding some of the most potentially relevant records in certain cases. Whether you’re prepared or not, it’s only a matter of time before the roles and functions discussed here come knocking. A little advanced preparation – even something as simple as an hour or two of training – can go a very long way toward not only protecting your organization but ensuring that your team is ready to face these challenges when they arrive.

At BIA we know data management inside and out, backwards and forwards, for big companies and small. We help clients not only with the litigation hold processes outlined above, but with internal computer forensic investigations and pre-hire social media reports that help inform hiring decisions. We invite you to reach out today. Remind your team and your organization of the CHRO’s role in eDiscovery—before litigation shows up and reminds you.

Contributors: Barry Schwartz & Brian Schrader