Nolene,

You wrote:
<How 'bout this scenario: Morgan Stanley had a program in place and had destroyed emails in the normal course of business. They get sued and produce all the relevant emails they have, but the one that the other side is looking for isn't there (destroyed, again, in the normal course of business). Is Morgan Stanly off the hook?>

Not necessarily.  However, the plaintiff would have to prove Morgan Stanley’s guilt some other way, which, in this particular case, would have been much more difficult.  Perelman may still have won, but there’s little doubt the final award would be anywhere near $1.45 billion.  (Don’t forget he was willing to settle last year for a measly $20 million!)

You wrote:
<How 'bout this one: The one email that would have proven they didn't do anything improper was deleted in the normal course of business. Could that harm them?

I'm asking because my CFO is afraid of the second scenario more than being caught with no program in place at all. How do I address his concerns?>

I understand your CFO’s concern and I will spare you the lecture on fiduciary responsibility, but I will point out that your CFO is suggesting that the records in this case would prove a negative - something you never want to have to do in a lawsuit.  If Morgan Stanley produced ten thousand emails suggesting they did nothing improper, Perelman’s team would only have to find one to convince the jury otherwise.  The bottom line is any record left at you organization passed its disposition date is a liability.  History bears this out. Far more lawsuits have been lost because records were produced that should have been (legally) expunged than won for the same reason...just ask Microsoft.

Hope this helps,
Don Lueders
[log in to unmask]

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance