When it comes to producing documents in employment litigation,
the deck is usually stacked in favor of the employee. Except in
those unusual circumstances when the employee is squirreling away
documents in an effort to build a case against the employer or
where the employee downloaded or otherwise stole documents just
before resigning or being escorted out of the building, the
employee normally possesses little if any documentary evidence.
The employer, on the other hand, often has a vast amount of
documents that can be characterized as relevant to the claim.
Courts impose the obligation on all parties to litigation to retain
documents, and the consequences for failing to retain documents can
be catastrophic. Court-imposed penalties for failure to retain
documents have ranged from a reprimand to a monetary penalty to a
negative inference jury instruction (instructing the jury to assume
that any documents which have been wrongfully destroyed would have
supported the
