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Litigation And Archiving E-mail

How long should e-mail be kept before it is permanently deleted?

In some ways, e-mail is the best thing to happen to corporate communication since the telephone. There's no better way to give a pithy response to a question. With e-mail, it's not rude to skip, "So, how are the kids-the wife? And, did you have a nice weekend." You can get right to, "Yes, I agree." It's quick, easy and efficient.

However, e-mail is dangerous too. Employees treat it as informal communication comparable to a telephone call. They often type it in all lowercase. They get sloppy with there spelling and grammar. The worst is that they say things they would never say in a formal document like a memo.


Tiffany's work has gone downhill lately. She's pregnant.
Let's get rid of her.


This hypothetical e-mail is beyond politically incorrect, it's potentially a legal disaster. And it may not reflect your corporate ethics or policies at all.

Nevertheless, you may find yourself trying to defend it. You may finding yourself asking whether her pregnancy was a gratuitous observation or a reason for firing her? Maybe Pete wanted her fired just because her work had gone downhill. It's not quite obvious.

Allow me to make one point clear. I'm not suggesting that e-mail is bad because it can reveal illegal conduct. What I am saying is that the words used in e-mail are often not carefully measured. It's beauty is that it's quick and easy communication. That's the antithesis of measured words.

Most litigation is not about outrageous statements. Most is about borderline conduct and situations. It's in these situations where an ill-considered quicky e-mail can haunt you unless you set up appropriate office procedures.

With e-mail, your Information Systems people may do their job too well. If they're good, they have elaborate backup procedures that include at least daily backups of all data, rotating copies off-site, and permanent archives. It's these very backup procedures that can be your undoing. Information Systems probably never considered the legal consequences of their actions.

You should never archive e-mail. It's not intended to be a permanent record of corporate activity and should not be archived as such. In litigation, it can be subpoenaed just like any other corporate "document." And it's a nuke waiting for a detonator. ("Detonators" often appear at 2:00 a.m., on television screens across America, after VegeMatic ads. A disgruntled former employee presses a button and the "detonator" says "No fee, no recovery" repeatedly.)

For e-mail to live up to its potential as a fast and easy way to communicate, it must stay informal and quick. E-mail is not the type of communication that should require a legal review. That's for more formal types of correspondence that you intend to be a permanent record of corporate activity.

Your Corporate E-Mail Policy (if you don't have a Corporate E-Mail Policy, take hand "a" and slap wrist "b") should state that e-mail is automatically and irretrievably deleted after 30 days. If an employee needs a permanent record of e-mail, you should require the employee to save it as a text file in a separate folder, which you do archive.

And about that e-mail policy, if your company doesn't have one, have a lawyer sensitive to these electronic issues prepare one for you immediately. E-mail is a wonderful thing, but it can hurt you too. A well-written e-mail policy is as basic to your company's legal well being as Covenants Not to Compete and Confidentiality Agreements. Not having one could spell doom.

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