What difference can a deleted e-mail make? For one employer, it might be the difference between winning and losing a lawsuit.

A woman sued her former employer, claiming she was fired for taking FMLA leave. The company claimed she was let go in a restructuring that would’ve happened even if she didn’t take leave. But the judge didn’t buy it, and now the case will be tried by a jury.

One key piece of evidence against the employer: a deleted e-mail explaining why the woman was fired. Here’s what happened, according to the court opinion:

After the woman was fired, her manager sent an e-mail explaining the termination to the rest of the department. When she said she was suing, the manager was told to save all relevant documents - including e-mail - in preparation for litigation. But the e-mail was deleted anyway. (The employee got a copy, and brought it to the court.)

The manager said it was erased by mistake, but the judge didn’t believe the story. He ordered the company to be sanctioned. That means when the case goes to trial, the jury will be told the company deleted the e-mail on purpose, presumably to hide incriminating evidence.

New rules being enforced

The decision shows just how seriously new “e-discovery” rules are being taken. The rules, passed in December of 2006, hold companies accountable for preserving electronic evidence.

For HR, the most important part of the rules is the concept of a “litigation hold.” Most companies have a policy to delete e-mail and other documents on a regular basis. However, once a company thinks it might be heading to court, it has a responsibility to start saving any data that might be important to the case.

Lessons learned

In this case, the company told the woman’s former supervisor about the hold - but made the mistake of trusting her to preserve everything she needed to.

Planning ahead could have given the company a better way to make sure the data was being saved. For example, the IT department might have started archiving every message that mentioned the employee, or saving everything sent by people involved in the hiring decision.

Also, it’s a good practice to save termination e-mails and other messages in ex-employees’ personnel files, even if there’s no indication they’re going to sue. That will prevent problems like this if a lawsuit is brought, and in most cases, the extra evidence will only help the company.

Cite: Connor v. Sun Trust Bank

Tags: Connor v. Sun Trust Bank, e-discovery, e-mail, FMLA