Why Worry About Email?

As more business is conducted electronically, companies are learning that email and other electronic communications such as text and instant messages are vital for record keeping. Echo Star Satellite, a designer, developer and distributor of television set-top boxes, faced a court-imposed sanction for destroying email evidence in a multi-billion dollar contract suit. The Financial Industry Regulatory Authority fined Piper Jaffray & Co. $700,000 for violations related to its failure to retain approximately 4.3 million emails from November 2002 through December 2008. A college student sued Nor walk Community College due to alleged harassment by a teacher. A computer forensics expert found evidence that the college had removed 500 emails from a key individual. The final settlement included a $765,000 fine to the college.

Although these may seem like extreme examples, they illustrate the importance of electronic records in litigation. According to a recent article published in the Duke Law Journal, electronic evidence has proven crucial in determining the outcome in cases involving allegations of sexual harassment, disputes over trade secrets, copyright infringement, and insider trading.

Whether your business is large or small, email retention and electronic record-keeping are issues you shouldn't ignore. In addition to legal concerns, effective ERM (electronic records management) can help provide disaster recovery solutions and make your IT operations more efficient.

Legal Considerations

Certain types of business- Such as health care, financial services, and government agencies and
contractors- are required by law to retain documents, including electronic documents and email federal laws- such as HIPPA, sarbanes-Oxlay and the Federal Rules of Civil Procedure-along with state and local laws require businesses to create and maintain email retention policies for ERM purposes. The lack of an email retention policy can result in prosecution and hefty fines.

But even if your company is not required by law to retain electronic correspondence, email is considered documentary evidence. Electronic discovery (aka ediscovery) refers to a process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a legal case. If your business is involved in litigation, the more documentary evidence you can produce to protect your business, the better. The ediscovery process is hampered if your electronic records are not easy to search or recover.

by Carmen Carmack