An attorney advises clients against the routine deletion of e-mail

The view that a legal team takes on how long emails/ email accounts  should be retained varies from organisation to organisation.  Here are two examples I have come across in the past couple of years:

  • In one organisation the legal team wanted the e-mails in the e-mail archive kept indefinitely because whenever there was any legal dispute it was the e-mail archive that they relied upon to build their case.  The records manager was concerned about this on the grounds that a significant proportion of the e-mail was trivial and/or personal.    The records manager asked for a two year retention period.  In the end they compromised and went for a seven year period.
  • In one organisation the legal team want the organisation to destroy e-mail after a year in order to reduce the chances of them having to disclose them in response to Freedom of Information requests.  The records managers support the legal team because they expect that the deletions will lead to more correspondence going into the electronic records management system

So which legal team is correct?  And should records managers be pressing for short or long retention periods on e-mail?

From a lawyer’s point of view it boils down to a simple equation:

  • Does the value to an organisation of keeping an e-mail account in terms of helping them to account for their actions and in helping them prepare their case to prosecute or defend a lawsuit outweigh the risk of being obliged to make damaging revelations to litigation opponents or in response to freedom of information requests?

Ralph Losey publishes the e-Discovery team blog.  He is over in London this week for the Information Governance and e-Discovery summit.   He is Chair of the Electronic Discovery Practice Group for the US law firm Jackson Lewis P.C.

Jackson Lewis is a firm that specialises in employment law.   Ralph is unequivocal that he wants his clients to retain their e-mail.  He told me that most of the employment claims his company defends against are spurious, and that it is easier for him to prove that the claim is spurious if his client has retained their e-mail correspondence from the period in question.

Ralph pointed out that most employees in most companies act legally.  The e-mail record is going to defend them more often than it will incriminate them.

This is what he said about email deletion in this recent  blogpost (Losey, 2015)

My understanding and experiences with Big Data analytics over the last few years have led me to understand that more data can mean more intelligence, that it does not necessarily mean more trouble and expense. I understand that more and bigger data has its own unique values, so long as it can be analyzed and searched effectively.

This change of position was reinforced by my observing many litigated cases where companies no longer had the documents they needed to prove their case. The documents had short retention spans. They had all been destroyed in the normal course of business before litigation was ever anticipated. I have seen first hand that yesterday’s trash can be tomorrow’s treasure. I will not even go into the other kind of problems that very short retention policies can place upon a company to immediately implement a lit-hold. The time pressures to get a hold in place can be enormous and thus errors become more likely.

There is a definite dark side to data destruction that many do not like to face. No one knows for sure when data has lost its value. The meaningless email of yesterday about lunch at a certain restaurant could well have a surprise value in the future. For instance, a time-line of what happened when, and to whom, is sometimes an important issue in litigation. These stupid lunch emails could help prove where a witness was and when. They could show that a witness was at lunch, out of the office, and not at a meeting as someone else alleges.

For what its worth I think we as records managers should press for e-mails to be kept for as long as we would keep the correspondence of the individual role holder if they kept a correspondence file.

Reference

Losey, 2005, Information Governance v Search: The Battle Lines Are Redrawn, e-Discovery team blog,  http://e-discoveryteam.com/2015/02/08/information-governance-v-search-the-battle-lines-are-redrawn/ , 8 February 2005 [accessed 13 May 2015]

2 thoughts on “An attorney advises clients against the routine deletion of e-mail

  1. emails should be kept for as long as they can legitimately be evidence in a suit, counter suit, or criminal case. When the “statute of limitations” expires for any activity that may be described, supported, or denied via the emails, destroy them promptly – unexpected exposure may create PR crises even though legal action can no longer be brought.
    .

  2. Apart from the well rehearsed sticks, have you come across any new carrots for email retention? Didn’t the Scottish government do some relationship mapping based on email exchanges, identifying the communication nodes of their organisation, as well as the email cul-de-sacs. Apparent cul-de-sacs might represent teams taking up new tools such as yammer. It would be great to hear more about the carrots.

    There’s many aspirational lunch breaks in my diary which short deadlines nudged into aldesco snack territory. I’m not sure they’d prove I was anywhere. Exhibit A: gym membership cards!

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