Preservation Notices to Employees

A preservation notice to employees is a formal instruction issued by an employer, legal department, or counsel requiring employees to preserve documents, electronic records, communications, and other potentially relevant evidence when litigation, arbitration, an investigation, or a regulatory proceeding is reasonably anticipated.

The purpose is to prevent the intentional or accidental destruction, alteration, deletion, or overwriting of evidence. In employment disputes, preservation notices can be particularly important because relevant evidence may exist in emails, WhatsApp messages, HR records, attendance systems, personnel files, CCTV footage, laptops, mobile phones, cloud storage, and collaboration platforms.

1. When should a preservation notice be issued?

A preservation obligation generally arises when an organisation reasonably anticipates litigation or another proceeding in which particular information may become relevant.

Typical triggers include:

• Receipt of a legal notice from an employee.
• Threat of an employment lawsuit.
• Filing of a complaint before a labour authority or tribunal.
• Internal investigation involving potential litigation.
• Allegations of discrimination, harassment, retaliation, wrongful termination, or wage violations.
• Regulatory investigation.
• Anticipated arbitration.
• Serious workplace incident likely to result in litigation.
• Notice of a potential claim from an employee's lawyer.

The organisation should not wait until a lawsuit is formally filed if litigation is already reasonably foreseeable.

2. What should be preserved?

The scope depends on the nature of the dispute. A preservation notice may cover:

Electronic information

• Emails.
• WhatsApp or other workplace messages.
• SMS/text messages.
• Teams/Slack communications.
• Electronic personnel records.
• Payroll records.
• Attendance and access records.
• Computer files.
• Cloud documents.
• HR databases.
• Performance-management records.
• Electronic calendars.

Physical records

• Employment contracts.
• Warning letters.
• Appraisal documents.
• Attendance registers.
• Investigation notes.
• Disciplinary records.
• Signed acknowledgments.
• Relevant paper correspondence.

Other evidence

• CCTV footage.
• Audio recordings.
• Photographs.
• GPS/location records where lawfully maintained.
• Device logs.
• Access-control records.

3. What should the notice tell employees?

A well-drafted preservation notice should clearly explain:

1. Why preservation is required.
2. What types of information are potentially relevant.
3. The relevant time period.
4. Which devices/accounts must be preserved.
5. That employees must not delete, modify, overwrite, destroy, or conceal relevant information.
6. That ordinary deletion practices may need to be suspended for relevant information.
7. Whom employees should contact with questions.
8. That the obligation continues until they receive a formal release or further instruction.

The notice should be sufficiently specific to allow employees to understand what they must preserve.

4. Litigation hold and preservation notice

The expressions "litigation hold," "legal hold," and "preservation notice" are often used interchangeably, although organisations may use them differently.

A litigation hold generally means an internal process designed to suspend ordinary document destruction and preserve potentially relevant evidence.

The process usually involves:

Trigger → Identify custodians → Issue notice → Suspend deletion → Collect/preserve information → Monitor compliance → Release hold

5. Employee responsibilities

Employees receiving a preservation notice should generally:

• Read the notice carefully.
• Identify potentially relevant information in their possession or control.
• Preserve relevant communications.
• Avoid deleting or editing relevant documents.
• Inform the legal/HR team if relevant information is stored on a personal device or account, subject to applicable privacy and employment rules.
• Preserve information even if it appears unimportant to the employee.
• Ask the legal team before disposing of potentially relevant material.

Employees should not conduct their own selective destruction or decide unilaterally that information is irrelevant.

6. Employer responsibilities

The employer should also take reasonable steps to ensure that the preservation process actually works.

This can include:

• Identifying relevant custodians.
• Identifying relevant information systems.
• Suspending automatic deletion where necessary.
• Preserving backup or archived material where appropriate.
• Following up with custodians.
• Documenting the preservation process.
• Periodically reviewing whether the hold remains necessary.
• Releasing the hold when the underlying obligation ends.

A preservation notice that is issued but never implemented may provide little protection.

Important Case Laws

1. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)

This is one of the most frequently cited authorities concerning litigation holds and electronic evidence.

The court held that once litigation is reasonably anticipated, a party has a duty to preserve potentially relevant evidence. The case also emphasised the importance of implementing an effective litigation hold and communicating preservation obligations to relevant employees.

Principle: An organisation cannot simply rely on ordinary document-retention practices after a duty to preserve has arisen.

2. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)

The court further examined UBS's preservation and collection obligations and stressed the need for counsel to communicate clearly with relevant employees.

Principle: Counsel should take reasonable steps to ensure that relevant employees understand their preservation responsibilities and that potentially relevant electronic information is not destroyed.

3. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010)

The court considered failures in preserving and collecting electronically stored information.

It emphasised that parties must take reasonable steps to preserve relevant evidence once litigation is reasonably anticipated.

Principle: Failure to establish and follow appropriate preservation procedures can lead to sanctions or other litigation consequences.

4. eBay Inc. v. Digital Justice, Inc., 2009 WL 1768195 (N.D. Cal. June 23, 2009)

The case concerned electronic discovery and preservation obligations. The court considered whether parties had taken appropriate measures concerning electronically stored information.

Principle: Parties involved in litigation must take reasonable measures to identify and preserve potentially relevant electronic information.

5. Apple Inc. v. Samsung Electronics Co., 881 F. Supp. 2d 1132 (N.D. Cal. 2012)

The court dealt extensively with preservation obligations and automatic email deletion.

The decision illustrates that an organisation may face serious consequences when it fails to suspend routine electronic deletion mechanisms after a preservation obligation arises.

Principle: A litigation hold may require suspension of ordinary automated deletion systems where relevant information could otherwise be lost.

6. Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001)

The Fourth Circuit considered the consequences of destruction of evidence relevant to litigation.

The case is important for the broader principle that parties must preserve evidence when litigation is reasonably foreseeable and that destruction of relevant evidence can affect the opposing party's ability to prove its case.

Principle: Evidence-preservation duties can arise before formal litigation when litigation is reasonably foreseeable.

7. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

The court examined discovery failures involving electronically stored information and the adequacy of preservation and collection procedures.

Principle: Organisations should establish defensible procedures for identifying, preserving, collecting, and producing electronically stored information.

8. DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021)

The court discussed extensive discovery failures and the importance of properly managing electronically stored information.

Principle: Discovery and preservation obligations require active compliance rather than merely issuing formal instructions and assuming that employees will follow them.

Preservation Notices in Employment Matters

In employment litigation, preservation notices can be particularly important in cases involving:

Preservation and employee privacy

A preservation notice does not automatically give an employer unlimited authority to inspect every employee's private information.

The employer should consider:

• Applicable privacy laws.
• Employment contracts and workplace policies.
• Personal-device issues.
• Personal email accounts.
• Privileged communications.
• Proportionality.
• Relevance of the information.
• Data-protection obligations.

Preservation and collection are related but distinct: an organisation may have to preserve information without necessarily being entitled to immediately inspect every piece of that information.

Consequences of Failure to Preserve Evidence

Failure to preserve relevant evidence can potentially result in:

• Adverse evidentiary inferences.
• Discovery sanctions.
• Monetary penalties.
• Exclusion of evidence.
• Additional discovery obligations.
• Increased litigation costs.
• Credibility problems.
• In serious cases, sanctions relating to spoliation of evidence.

The actual consequence depends on the applicable procedural law, the nature of the loss, the party's conduct, and whether the opposing party was prejudiced.

Best-Practice Preservation Notice

A practical employer preservation notice should contain:

Subject: Legal Hold / Preservation of Potentially Relevant Information

• Identify the dispute or investigation.
• Explain that relevant information must be preserved.
• Identify the relevant employees/custodians.
• Identify categories of information.
• Identify relevant dates or time periods.
• Identify devices and communication platforms.
• Suspend applicable automatic deletion.
• Instruct employees not to alter or destroy relevant information.
• Provide a contact person for questions.
• Require acknowledgment where appropriate.
• State that the hold remains effective until formally released.

Conclusion

A preservation notice to employees is an important litigation-management mechanism. Its effectiveness depends not merely on sending an email but on identifying relevant custodians and information, communicating clear instructions, suspending applicable deletion processes, monitoring compliance, and documenting the preservation process. The leading authorities such as Zubulake, Pension Committee, Apple v. Samsung, and Victor Stanley demonstrate the importance of taking preservation obligations seriously once litigation or another proceeding is reasonably anticipated.