Required Document Preservation For A Likely Lawsuit

McLane Middleton, Professional Association


Founded in 1919, McLane Middleton, Professional Association has been committed to serving their clients, community and colleagues for over 100 years.  They are one of New England’s premier full-service law firms with offices in Woburn and Boston, Massachusetts and Manchester, Concord and Portsmouth, New Hampshire. 
I own a business, and a former employee has notified me that they intend to sue my business. Do I have any requirement to preserve documents or other potential evidence...
United States Litigation, Mediation & Arbitration
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Q: I own a business, and a former employee has notified me that they intend to sue my business. Do I have any requirement to preserve documents or other potential evidence if a lawsuit has not yet been filed?

A: Yes, you likely do have such a requirement. Under New Hampshire law, all parties to a lawsuit are under an obligation to preserve documents and records from the time that the party is reasonably on notice that a document or record may become evidence or be subject to discovery in a lawsuit. Your former employee's notice to you that they intend to sue your business likely constitutes the reasonable notice required to trigger this preservation obligation.

When considering what to preserve, it is best to err on the side of over-preserving. You will not necessarily need to produce to the former employee everything that you preserve (production will generally come later, once the lawsuit is filed and discovery has begun); however, if you fail to preserve evidence that could have proven helpful to the other side, the court (and any jury) may draw an adverse interference against you, meaning they'll think you destroyed the evidence because it was damning to you. Failing to preserve relevant documents and records—even inadvertently or accidentally—could leave you paying a steep price.

As to the scope of what you should preserve, think broadly about what might be relevant to the potential lawsuit. Is the former employee, for instance, claiming that they were harassed by one or more of your other employees? You should assure that those other employees' emails, text messages, and other communications are locked down by imaging their devices or at least stopping any automatic deleting or overwriting. You must preserve all documents and records that directly (or even indirectly) relate to the expected subject matter of the lawsuit. It might be helpful in deciding what types of issues (and therefore evidence) could come up in a lawsuit to talk with a lawyer.

You should also think broadly about the types of documents and records that need to be preserved. The preservation requirement extends beyond paper documents to include things like digital files (such as word processing documents and spreadsheets), voicemail recordings, pictures, videos, email, and text messages. Think about what information you would want if you were the former employee, and what information may be useful in your business's defense.

Published: Union Leader
June 16, 2024

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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