Preserving Digital Evidence in Employment Cases

You've been dealing with a hostile supervisor for months. The discriminatory comments started in a Teams chat. The retaliation escalated through emails. Your HR complaint — and their dismissive response — lives in your Outlook inbox. Then one morning you badge in and your access is revoked. Your laptop is collected. Your email is deactivated. And every piece of digital evidence you were counting on is now locked inside a system controlled by the people you're about to sue.

This scenario plays out constantly in employment litigation. The digital communications that prove discrimination, harassment, retaliation, and wrongful termination are stored on employer-controlled platforms that can be altered, purged, or conveniently "lost" once a lawsuit becomes likely. Understanding how these systems work — and how to preserve what matters before it disappears — is one of the most important things an employee can do to protect a potential legal claim.

How Corporate Systems Destroy Evidence

Modern workplaces run on platforms like Microsoft 365 (Outlook, Teams, SharePoint, OneDrive), Slack, Google Workspace (Gmail, Google Chat, Drive), and Zoom. These tools generate an enormous volume of communications every day, and companies implement retention policies to manage that data. The problem is that retention policies are really deletion policies — and they operate automatically, silently, and continuously.

Microsoft 365 allows administrators to set retention and deletion policies at the organization level. A common configuration deletes emails and Teams messages after 30, 60, or 90 days. Some companies set even shorter windows. When those policies run, the messages aren't just moved to a trash folder that an employee could recover — they're purged from the system entirely, including from the "Recoverable Items" folder that serves as a backstop.

Slack's free tier is even more aggressive: it retains only the last 90 days of message history by default. Even on paid plans, workspace administrators can configure custom retention policies that automatically delete messages and files after a set period. When an employer sets Slack to auto-delete after 30 days, the harassing messages your coworker sent last month are simply gone.

Google Workspace offers similar administrative controls. Gmail messages, Google Chat conversations, and Drive files can all be subject to organization-wide retention rules. Even the "Vault" feature — designed for legal holds — only works if someone actually activates it.

The critical point is this: these deletions happen automatically, without any human decision to destroy specific evidence. When your employer's lawyers later say "we don't have those records," they may be telling the truth — not because someone intentionally destroyed them, but because a retention policy they set up years ago quietly purged them on schedule.

Why "Our Policy Deletes It" Is Not a Defense

Employers sometimes argue that routine data retention policies excuse the loss of relevant communications. Courts have consistently rejected this argument once a duty to preserve has been triggered. Under both federal and Oklahoma discovery rules, a party has an obligation to preserve evidence when litigation is reasonably anticipated — not when a lawsuit is actually filed, but when the party knows or should know that a dispute may lead to litigation.

The Federal Rules of Civil Procedure address electronically stored information (ESI) extensively. Rule 37(e) specifically governs the failure to preserve ESI and allows courts to impose sanctions ranging from adverse inference instructions (telling the jury they can assume the destroyed evidence was harmful to the employer) to outright dismissal of claims or entry of default judgment.

Oklahoma's discovery rules, particularly 12 O.S. § 3237, similarly provide remedies for spoliation of evidence. Oklahoma courts can impose sanctions, strike pleadings, or instruct juries to draw negative inferences from the destruction of relevant evidence.

The duty to preserve typically arises when an employee files an internal complaint, submits an EEOC charge, hires an attorney who sends a demand letter, or communicates in any way that a legal claim is possible. From that moment forward, the employer must implement a litigation hold — a directive to suspend all auto-delete policies for relevant custodians and data sources. An employer who fails to issue a litigation hold, or who issues one but doesn't enforce it, is on the hook for whatever evidence is lost.

What a Litigation Hold Actually Requires

A proper litigation hold is not a one-time email to the IT department. It requires identifying all custodians who may have relevant data (the employee, their supervisor, HR personnel, relevant executives), identifying all data sources where relevant communications may exist (email, Teams, Slack, text messages, shared drives, HR systems, performance management platforms), suspending automatic deletion policies for those custodians and sources, and affirmatively collecting and preserving data that might otherwise be lost.

The hold must cover more than just email. Teams chat messages, Slack DMs, text messages sent on company phones, voicemails, calendar entries, SharePoint documents, performance review platforms like Workday or BambooHR, and even metadata (who accessed what files and when) are all potentially relevant and must be preserved.

In practice, many employers issue litigation holds on paper but fail to follow through. The IT department never suspends the retention policy. A custodian's mailbox is purged on schedule. A departing employee's account is deactivated and their data is deleted as part of the standard offboarding process. These failures don't excuse the loss of evidence — they compound it.

The Employee's Playbook: Preserve Before You Lose Access

If you believe you may have an employment claim — whether for discrimination, harassment, retaliation, or wrongful termination — you need to act to preserve your own evidence before your employer controls the narrative. Here's what that looks like in practice.

First, identify the key communications. Think about which emails, chat messages, documents, and text messages support your claim. The harassing messages from your supervisor. The email where HR dismissed your complaint. The performance reviews that were positive until you reported discrimination. The policy documents that show you followed procedure. The calendar entries that confirm key meetings or incidents.

Second, create copies outside the employer's systems. Forward critical emails to your personal email address. Screenshot Teams and Slack messages (including timestamps and sender information). Save important documents to a personal device or cloud storage. Photograph your workspace if physical conditions are relevant. Make sure every copy includes enough context to be useful — the full message thread, not just one line; the sender and recipient information; the date and time stamps.

Third, preserve text messages on personal and work devices. If your supervisor texted you inappropriate messages on your personal phone, screenshot them immediately. If you have a company phone, photograph the screen or take screenshots before the device is collected. Text messages are frequently relevant in employment cases and are frequently lost when phones are wiped or returned.

Fourth, document the timeline. Create a contemporaneous written account of key events while your memory is fresh. Note dates, times, locations, witnesses, and the substance of verbal conversations that weren't memorialized in writing. This personal timeline can be powerful corroborating evidence even when the underlying digital records are gone.

A word of caution: employees should be mindful of confidentiality obligations and avoid taking trade secrets, client data, or privileged attorney-client communications. The goal is to preserve evidence of wrongdoing against you, not to take proprietary business information. An employment attorney can help you navigate this distinction.

Common Corporate Tactics and How Courts Respond

Employers and their counsel deploy several recurring strategies to minimize the impact of digital evidence. Understanding these tactics helps you prepare for them.

The "routine deletion" defense claims that evidence was destroyed as part of normal business operations, not with any intent to conceal wrongdoing. Courts reject this defense when the employer had notice of a potential claim and failed to issue or enforce a litigation hold. In Zubulake v. UBS Warburg — the landmark ESI preservation case — the court imposed an adverse inference instruction after the employer failed to preserve emails despite knowing that litigation was coming.

The "it's on your device too" deflection shifts the preservation burden to the employee, arguing that the employee had access to the same communications. This may be partially true for email exchanges, but it ignores that employees generally cannot access server-side data, Teams admin logs, HR system records, or other custodians' communications. It also ignores that the employee may have been terminated and lost access.

The "proportionality" argument contends that preserving all ESI is too burdensome or expensive. While proportionality is a legitimate consideration under the rules, courts distinguish between the burden of preservation (which is the party's obligation) and the burden of production (which can be negotiated). An employer cannot use "it's expensive" as an excuse for not preserving evidence it had a duty to keep.

Deliberate destruction — actually deleting specific messages or instructing IT to wipe an account — is the most egregious scenario and the one most likely to result in severe sanctions, including case-dispositive relief. When courts find intentional spoliation, the consequences go far beyond adverse inferences.

Special Considerations for Oklahoma Employment Claims

Oklahoma employment claims often involve both federal and state law. Title VII claims, ADA claims, and Age Discrimination in Employment Act (ADEA) claims proceed through federal court, where the Federal Rules of Civil Procedure and a substantial body of ESI case law govern preservation obligations. State law claims — such as those under the Oklahoma Anti-Discrimination Act (25 O.S. § 1101 et seq.), Burk tort claims for wrongful discharge, or claims under the Oklahoma Whistleblower Act — may be litigated in state court under Oklahoma's discovery rules.

Oklahoma's approach to ESI preservation has evolved, but it generally follows the same principles: once litigation is reasonably anticipated, parties must preserve relevant evidence, including electronically stored information. Oklahoma courts have broad discretion in fashioning remedies for spoliation, and the remedies available — adverse inferences, exclusion of evidence, striking of pleadings — give teeth to the preservation obligation.

For employees filing charges with the EEOC or OCRE, the filing itself unambiguously triggers the employer's duty to preserve. Any evidence destroyed after an EEOC charge is filed is presumptively spoliated, and courts take a dim view of employers who claim ignorance.

Building Your Case Around Digital Evidence

The most powerful employment cases combine preserved digital communications with other forms of evidence. An email chain showing escalating harassment is compelling on its own. Paired with a performance review showing the employee was rated "exceeds expectations" before complaining and "needs improvement" after, it becomes devastating.

Metadata — data about data — can be equally valuable. When was a document created? When was it last modified? By whom? Was a performance improvement plan backdated to make it appear as though problems predated the complaint? Metadata can answer these questions, and competent forensic analysis of employer systems often reveals attempts to alter the record.

If you suspect that your employer has destroyed evidence, your attorney can seek court intervention early in the litigation. Emergency preservation orders, forensic imaging of servers, and third-party ESI vendors can help capture data before more is lost.

Frequently Asked Questions

Can I forward work emails to my personal account?

Generally, yes — for emails relevant to a potential legal claim. However, avoid forwarding confidential business information, trade secrets, attorney-client privileged communications, or client data. Focus on communications that document the conduct giving rise to your claim. If in doubt, consult an employment attorney before forwarding.

What if my employer has already deleted the evidence?

If your employer destroyed evidence after having reason to anticipate litigation, you can seek spoliation sanctions. Depending on whether the destruction was intentional or negligent, courts can instruct the jury to assume the destroyed evidence was unfavorable to the employer, exclude the employer's evidence on the topic, or even enter default judgment.

How long do companies typically retain emails and chat messages?

It varies widely. Some companies retain email indefinitely; others auto-delete after 30, 60, or 90 days. Slack and Teams retention policies are set by administrators and can be as short as one day. The key question isn't how long the default policy keeps messages — it's whether the employer suspended that policy when it was legally required to do so.

Does my employer have to preserve text messages too?

If text messages are relevant to the dispute and the employer controls the device or account, yes. Company-issued phones, employer-managed messaging apps, and even personal devices used for work communications under a BYOD policy may all fall within the preservation obligation. Employees should preserve their own text messages as well.

What about messages on personal devices like WhatsApp or Signal?

Personal messaging apps used for work-related communications can be relevant and discoverable. If your supervisor harassed you via WhatsApp or used Signal to communicate off the record about your termination, those messages are evidence. Preserve them by taking screenshots that include the contact information, timestamps, and full conversation threads.

Can my employer claim the auto-delete policy was set before they knew about my complaint?

They can claim it, but courts don't accept it as a defense. Once litigation is reasonably anticipated, the employer must affirmatively suspend auto-delete policies for relevant data. Failing to override a pre-existing retention policy is negligent preservation at best and willful spoliation at worst.

Should I record conversations with my employer?

Oklahoma is a one-party consent state, meaning you can legally record a conversation you're participating in without telling the other person (13 O.S. § 176.4). However, some company policies prohibit recordings, and violating that policy could give the employer a pretext for termination. Discuss this with your attorney before recording.

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Digital evidence makes or breaks employment cases. The emails, messages, and documents that prove discrimination, harassment, and retaliation live on systems your employer controls — and those systems are designed to delete data on a schedule. Don't wait until you've been locked out to think about preservation.

At Addison Law, we represent employees in discrimination, retaliation, and wrongful termination cases throughout Oklahoma. We understand how corporate IT systems work and how to hold employers accountable when evidence disappears. Contact us for a free, confidential consultation.

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This article is for general information only and is not legal advice.