As a lawyer who constantly tried to get clients to be cognizant of the litigation implications of their business activities, I really appreciate your asking that Q. But it’s also a huge Q on which volumes can–and should be–written. To start out, under basic laws of evidence, when litigation begins or is about to begin, the so called “litigation hold” requires the parties to preserve and disclose every “document” relating to any issue in the case. The word “document” is defined broadly as including data and information recorded or stored by means of electronic devices. Once the case begins, the sides conduct a process known as “discovery” asking the adversary to provide records related to the case–in an employment case, that would include the employment records and such. Records subject to discovery include not only paper documents but also documents received, created or stored electronically within any electronic system, including individual computers, laptops, palm pilots, Blackberries, voice records, network file servers, zip drives, computer logs, back-up tapes and more.
Bottom Line: All of your employment records are basically fair game for litigation–unless privilege or other exemptions apply. This is a very basic explanation, I understand. But if you need details or want to delve into specific issues, I’d suggest you take a look at CAN/CGSB-72.34-2017, the Canadian national standard on use of electronic records as documentary evidence in not just employment but all litigation. http://publications.gc.ca/collections/collection_2017/ongc-cgsb/P29-072-034-2017-eng.pdf While not technically binding, it’s pretty much the consensus standard right now.
Hope that helps and good Q. Glenn
