On 10/30/07, Peter Kurilecz <[log in to unmask]> wrote:
>
> On 10/30/07, Charis Wilson <[log in to unmask]> wrote:
> > Just a thought, you may want to review an article by Timothy Carroll in
> > the Metropolitan Corporate Counsel magazine's August 2007 issue, titled
> > IMs as ESI: When to Save Instant Messages and How to Properly
> Authenticate
> > Retained IMs.
>
> the article can be found here
>
> http://tinyurl.com/2gfnmr



Interesting article, and some of the citations pointed out are interesting
as well.... but I think the application of some of them could be considered
subjective, and may not satisfy the rule of legal precedent... that is to
say just because ONE court ruled this way on it and issued their opinion,
another may not agree.

I heard a circuit court judge at a Westlaw meeting once say that the didn't
agree with the decision Judge Scheindlein made in the landmark Zubulake
case, and if a similar case came up before him, he would rule differently on
it, irrespective of the precedent.

One error in the article was the comment

For some organizations, the Securities and Exchange Commission ("SEC") and
the National Association of Securities Dealers ("NASD") have resolved that
issue for you by promulgating rules that explicitly place a three-year
retention requirement on IMs.

This does not apply to ALL IMs these organizations generate/receive, ONLY on
the ones that relate to the types of transactions called out specifically in
17 C.F.R. 240.17a-4(b)(4).

And although another person earlier in this thread said "prohibition never
works...", I STRONGLY DISAGREE.  I think a lot of this depends on how your
organization's policy is established and what requirements there are on the
use of company-owned technological resources.  If the employees sign off on
a policy regarding the use of IT assets and/or these is a policy "screen"
they have to click by agreeing to stated policies and then they elect to use
prohibited technologies (whether they are available in a web based
environment or not) they are in violation of policy.  And typically, there
are penalties for that... but at minimum, the organization is able to avoid
liability and shift it to the employee.

Personal experience here, not a scare tactic on the day before Halloween.

Larry

-- 
Larry Medina
Danville, CA
RIM Professional since 1972

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