Keep Documents Clean and Secure

03/05/07

When creating documents that may later be used as evidence in a lawsuit, don’t underline words, write in the margins, or provide a plaintiffs’ attorney any opportunity to call into question the validity of the document or the credibility of your company.

Attorney Paul Salvatore, of Proskauer Rose in New York City, recently told a group of HR professionals of a case that hinged upon a mark that appeared to be a staple on the photocopy. That suggested that some of the pages in a document that had been submitted as evidence were deliberately left out. “Keep the document in a way so you can say that’s just the way you found it,” he told a group of HR professionals. “A good lawyer will question any stray mark.” And that may bring out information that bolsters the plaintiff’s case.

What’s more, if you involve an attorney in a situation early, and that attorney asks you to create a document, make a note on it that says “Not Discoverable” and that you created it “pursuant to the advice of outside counsel” or something similar. This document may then be protected as “work product” under the attorney-client privilege. You may then be able to keep it out of the hands of the opposing party in the event of a trial.

Finally, keep track of who has what evidence and when. You may be asked to establish a “chain of custody.” If you lost track of an audiotape of an employee interview for a month or two, for example, an attorney might suggest convincingly that the tape was somehow reedited or doctored rendering it inadmissible as evidence.