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The Importance of Having an Electronic Document Retention Policy in Place Before The Lawsuit is Filed

Kegler Brown Litigation Newsletter

If you have ever been involved in a lawsuit, you are familiar with the burdens imposed by the discovery process. You understand the challenges of responding to document requests. Identifying, reviewing, and copying responsive documents can be a tedious and expensive undertaking. What you may not appreciate is how e-mail has made responding to discovery requests more complicated. As with hard copy records, planning the retention and storage of e-mails will serve you well if and when you find yourself in a lawsuit.

Any current understanding of "document" or "record" will include electronically-stored information, including e-mail. This means that any business needs to consider the implications of how e-mail is used and archived before the company becomes a party to a lawsuit.

Perhaps most importantly, everyone using the company e-mail system needs to understand that the information is not necessarily confidential and the e-mail may not disappear simply because it has been deleted. The most basic rule, as with all written documents, is that the writer must understand that any writing may be disclosed and read. Therefore, the author of an e-mail should think just as carefully about what is written as would the author of a letter or memorandum. This is contrary to our natural inclination to think of e-mail as an informal, off-hand way of communicating. While it may be informal, it should be assumed that it is likely that someone other than the recipient will read the e-mail.

Beyond these most basic admonitions, a business should consider how to deal with e-mail before potential litigation. Some considerations are:

  • The company should institute policies regarding the proper use of e-mails (e.g., for company-related matters only).
  • There should be policies regarding retention of e-mails. For example, the company may allow or require that e-mails be deleted from individual computers regularly.
  • There should also be a policy regarding how e-mails, which may or may not have been deleted from individual computers, will be archived. For example, there may be periodic back-up of e-mail severs. Archive policies should include consideration of how archived e-mails can be retrieved and searched.
  • As part of a comprehensive document retention policy, there has to be a program for destruction of archives after a certain period of time.
  • There should be policies to ensure that any e-mail subject to an outstanding obligation to produce is not intentionally or inadvertently destroyed.
  • There should be a designated individual who understands the e-mail system, including what is retained and how it can be searched.

Once the company receives a document request in litigation it is involved in as a party or a subpoena as a third-party to litigation, the first step should be to notify anyone in the company who may have relevant information to not delete or destroy any records, including e-mails.  This commonly is referred to as a "litigation hold". If someone destroys relevant e-mails after the request is received, there could be a separate lawsuit or cause of action for spoliation of evidence. 

The next step is to identify the individual within the company who is most knowledgeable about the company's computer system and electronic record storage. That person needs to be involved in designing the search. It is not uncommon to have to search several databases, and you want the person who knows the system and its capacity advising on how to search. You should also remember that this person may be called as a witness, either at a deposition or before a grand jury, to testify about the thoroughness of the search.

Once the universe of possibly responsive e-mails is identified, they will have to be reviewed by counsel to determine whether the e-mails are responsive. Counsel will also review the e-mails to determine whether they are privileged communications that are not subject to disclosure.

As you might expect, responding to a request for electronic records, including e-mails, can be expensive and time-consuming. Well-conceived procedures for using and storing e-mails can decrease the cost of searching, retrieving and reviewing e-mails and other electronic records. It is necessary, however, that these procedures be developed and in place prior to any request in connection with litigation. Lawyers with Kegler Brown's Litigation Group are available to assist your staff in designing a document and record retention program that will include electronic records and e-mail.

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