These days, old e-mail messages invariably surface as evidence against one party or another in major commercial litigation. Since digital communication has become so integral to our professional lives, e-mail messages are often placed front and center during discovery and can be crucial in trials.
A company’s seemingly bottomless well of e-mails can be both troublesome and helpful in litigation precisely because it contains so many communications. It includes formal letters and documents as well as casual asides, jokes, and hasty replies. Think back fifteen years ago if you can. Back then, people would rarely, if ever, snail-mail a note that contained AOK, will talk to you later.” Nor did attorneys ask their clients to archive every yellow sticky note in anticipation of litigation. Yet today, a company’s complete e-mail history can chronicle a large percentage of all the written utterances an organization and its employees make, both good and bad.
This wealth of data creates innumerable openings for an experienced attorney to spin damning evidence in the context of unforeseen litigation. Thus, we now frequently see companies being burned by e-mails culled from their vast files. When businesses are caught destroying relevant electronic communication while in the midst of litigation, they can be, and often are, harshly sanctioned by courts.
Given this state of affairs, companies are rightly seeking counsel on internal policies governing the retention and destruction of electronic documents in general, and specifically e-mail. The purpose of such policies is to provide guidance as to when and under what circumstances a business and its employees should destroy or preserve these documents.
When it comes to voluminous e-mail, this is obviously a pressing issue. Should companies save their e-mails en masse forever, or save them for a finite period of time and then destroy them? These are smart questions to ask. Sound e-mail retention polices can benefit businesses by allowing them to safely delete e-mail that could be damaging in future litigation and by allowing them to plan and limit digital storage requirements (and thus lower costs).
Many organizations operate with weak e-mail retention policies in place or no policies at all. Some companies manage their e-mail by regularly scheduling mandatory purges or by limiting the size of individuals’ e-mail accounts, forcing people to either archive or delete messages as they see fit. Other businesses do not deploy any e-mail deletion policy, and still others require their employees to print out and save hard copies of messages before deleting them.
All these options can be problematic. To begin with, consider that the moment an organization learns of threatened or actual litigation, it must cease destroying any documents that may be within the subject matter of the lawsuit. Any organization that allows people to delete what they see fit or that mandates a regularly scheduled e-mail purge may expose itself to liability. Such policies can result in large numbers of messages being inadvertently destroyed hours or days before an organization learns of likely legal action as well as immediately after it learns of the action, but before news of it is conveyed to the appropriate people.
Saving hard copies of deleted e-mail messages is not a foolproof protection from liability. Any policy that involves deleting e-mails causes the loss of both original e-mail content (i.e., the words in the messages) and information about deleted emails that is stored at the “system level.” This information is called metadata and it can tell you how the message was routed, who created or modified it, and from where it originated. By printing and saving hard copies of e-mail and then deleting the messages, companies lose this metadata, which is often crucial in litigation, and such deletions can be the source of sanctions as well.
Finally, the “delete-nothing” approach surely reduces the risk of large sanctions, but the resources and costs required to manage, monitor, and store the thousands of messages may soon become staggering, even if new e-mail management software is employed.
It would help if businesses, along with guidance from their customers and clients, developed standards regarding e-mail retention and destruction. A possible solution could involve distinguishing “formal” e-mail from “informal” e-mail, such as internal alerts like “there are donuts in the conference room.” Informal e-mails could be deleted after an interval of time. Formal messages would be preserved indefinitely, until a related customer or client released the business to delete the e-mails, or until after the statute of limitations expired for the matter in question.
The sooner businesses come to terms with this issue the better. For years to come, e-mail will be a source of liability. The exponential growth of digital information storage and the ubiquitous use of e-mail will only make companies more vulnerable in this respect as time goes on.
William A. McComas, a partner with Shapiro Sher Guinot & Sandler and a member of the Maryland State Bar Association’s Technology Taskforce, concentrates on assisting companies in creating, protecting, acquiring, developing and commercializing technology and valuing and disposing of intellectual property assets. He can be reached at wam@shapirosher.com.