Do you need to take any immediate steps to preserve evidence?
Before taking any steps to preserve evidence, consider whether such actions are legally permitted under applicable national laws and, if so, whether any specific procedures are required.
In most jurisdictions it will be permissible to take reasonable precautionary steps to ensure the preservation of evidence. However, procedures for doing so may differ from one country to another. For example, in France it is common to ask a bailiff (a hussier de justice) to carry out this process and in Italy there are specific statutory procedures to follow when seizing electronic evidence or IT systems.
Care is also needed to ensure that there are sufficient grounds for taking this step, particularly where materials you are contemplating seizing (eg a personal computer) are likely to contain personal as well as work related information; this can give rise to data protection concerns.
Steps you may need to take include:
- seizing an employee’s computer or Blackberry™/iPhone™ or mobile phone for forensic investigation
- reviewing an employee’s emails
- searching the employee’s desk
- liaising with the IT department in order to safeguard any data files or information contained on the relevant data server
- locating and preserving any relevant telephone recordings, CCTV footage and/or relevant paper documents
Consider the effect of any collective agreements. You may need authorisation to use seized evidence in the course of any proceedings.