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Message Record Destruction via Electronic Data Records Law | How to Win
E-Discovery by Benjamin Wright on 9/24/08

Spoliation in Electronic Records Law

In records management one school of thought says employees should be
expected to examine each of their e-mail, instant and text messages and
make records retention decisions. Under this school, the decisions are
1. do we keep this message or allow our IT system to destroy it
quickly, and 2. if we do keep this message, do we keep it in retention
category A, category B or category C. I'll call this the
make-a-decision school of thought. See the good discussion.

Generally speaking I am skeptical of the make-a-decision school of
thought. The reason is that – in this Age of Information – few
employees have the time, talent or disposition to make good decisions.
The growth in the number of digital messages touching employees is
accelerating. The growth will continue to accelerate.

Cases show the legal system punishing enterprises for destroying
records too early under the make-a-decision approach.

Arthur Andersen's formal records policy expected its professional
auditors to make lots of records decisions (keep this record, destroy
that record). But AA's auditors were too busy doing their day jobs, so
they procrastinated about making decisions on records related to their
biggest client, Enron. In other words, the digital age had swamped
Andersen's employees with too many e-mails, faxes and papers.
Therefore, they accumulated a backlog of records . . . records that
demanded decisions, boring tedious decisions that employee hate. (Keep
it or destroy it? Keep it or destroy it? Keep it or destroy it). Then,
when crisis rose at Enron, AA's employees deliberated about what to do
with this backlog. They deliberated about how to interpret their record
retention policy in this unexpected situation, and then (with the
involvement of qualified counsel) they made decisions that later looked
bad. . . .
Andersen's employees destroyed records in the good-faith belief that
they were following their policy consistent with advice of counsel. The
legal system proceeded to destroy Andersen.



Another case: In Broccoli v. Echostar Communications Corp., 229 F.R.D.
506 (D.Md. 2005), employee Broccoli complained to management that a
superior was harassing him sexually. Multiple managers discussed this
complaint by e-mail. Later, after Broccoli sued, the employer could not
produce records of the relevant e-mails exchanged among managers. The
employer said its usual policy was to destroy e-mail in 21 days, and it
had just followed its policy. The court sanctioned the employer for
spoliating e-mail records. The court said it may be okay for a company
to destroy e-mail quickly . . . so long as the company suspends
destruction with respect to e-mails related to potential litigation
like that brought by Mr. Broccoli. In effect the court said the
employer should have applied an early litigation hold on e-mails
related to Broccoli's complaint.

So what would the make-a-decision school of thought say about the
Broccoli case? I interpret it to say that managers must be trained to
recognize e-mails that pertain to potential litigation and then to save
those e-mails specially (i.e., put them in category X). To me, that
approach to e-mail retention does not normally work. Managers are
ill-qualified to make such decisions. They don't have time to make
those decisions with respect to the ever-growing deluge of e-messages
coming at them.

I therefore offer a hypothesis: Enterprises will fare better in the Age
of Information if they tilt toward being very generous in their
retention of electronic records . . . and tilt away from expecting
individual employees to make one-by-one, keep-it-or-destroy-it records
retention decisions.

This is a big topic, and it keeps me humble. I do not know everything.
This post does not cover all the issues. I aspire to explore more of
the issues, and I welcome input!

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leaders in
e-message management.


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