It is important for all organizations to have a clear and well-thought out e-mail retention policy. In modern litigation, e-mail has become a fertile source of evidence, both helpful and harmful. The final disposition of civil cases commonly turns on the existence and content of emails.

Most companies are aware that once the company is named in a lawsuit, all relevant or potentially relevant e-mails must be preserved. Failure to do so can lead to very serious civil sanctions, including the finding of a judgment against the company or dismissal of the company’s case (if the company is a plaintiff in the lawsuit). Additionally, if the destruction or failure to retain documents is deemed willful, criminal penalties can come into play.

What is not as well known is that this duty comes into effect not only when a company has been sued, but when a company has reason to believe that it might be sued in the future. If a company has any reason to believe that it may be sued, all e-mails relating to that issue must be preserved from that time forward. Failure to do so could lead to significant and substantial aforementioned sanctions should any relevant documentation be inadvertently or intentionally destroyed.
As soon as the company has reason to believe that it might be sued, it should immediately collect all e-mails relevant to that issue and perform the following:

  1. Print off hard copies of all such e-mails and electronic correspondence, and
  2. keep them in a file and/or provide them to corporate counsel;
  3. All e-mails should be backed up and preserved in an archived file; and
  4. All automatic deletion procedures should be cancelled with respect to the potentially relevant files.

Once a company believes litigation or a dispute may occur regarding a matter may that exist, no attempts to destroy any electronic records should ever be undertaken. Not only is this dishonest or against the rules and the law, but with modern forensic recovery techniques, the “destroyed” can typically be recovered, along with all evidence of the attempts to destroy them.

Michael L. Kitchen