Companies are dealing with more uncertainty around the management of company data than ever before. The recent move to remote workforces, the proliferation of technology being used by employees to store company data and now the potential—or reality—of large numbers of employees exiting companies are creating a risk of data loss. In particular, departing employees, whether they leave a company voluntarily or involuntarily, present additional risk to an organization when those employees are subject to ongoing preservation obligations for active litigations or investigations.

After years of volatility in the labor market, it is important that companies plan for employee departures and manage departures to reduce the risk of data loss. In this article, we offer guidance on how companies should approach the dilemma that employee departures present when the departing employee is to subject to an active legal hold and key steps to take to develop a defensible departing employee preservation program.

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