anybody from North Dakota want to comment on this interpretation?

http://shrinkster.com/12ji

Sent to you by pakurilecz via Google Reader: State Government Record
Retention Schedule - Reasonably Interpreted via Electronic Data Records
Law | How to Win E-Discovery by Benjamin Wright on 10/21/08
Erase Government E-mail in 15 Days?

Many state governments publish record retention schedules for state
agencies. Often these schedules (or statements related to them) address
e-mail records. Many of the official state pronouncements of guidance
on e-mail retention can be found here. If you study all these
pronouncements, you will hear many conflicting ideas.

Let’s look at one pronouncement, picked at random – North Dakota’s
General Records Retention Schedule dated 9/3/2008.

For e-mail records, at 450102 it says, "Retain in office until the
record status is determined, but no more than 15 days, then delete. If
the e-mail message is an official record made or
received pursuant to law or in connection with the transaction of
official business,
the retention period should be covered by an existing record series."

Whoa. That language might easily be interpreted to require really fast
destruction as the default. That default would be subject to someone
making a decision that an important e-mail is in fact important. If one
were to interpret this Schedule to require quick deletion of most
e-mail, that interpretation would seem hazardous

under present trends in litigation. As I've argued elsewhere, the legal
system is giving all enterprises, including state agencies, incentive
to be generous in e-mail retention.

As the volume of e-mail, text and other e-messages soars, employees
don't have time to “determine the record status” of all those messages.
Further, the making of such determinations on a message-by-message
basis can be a waste of government resources (employee time).

Electronic messages can have subtle and unexpected legal effects. Cloud
Corp. v. Hasbro, 314 F.3d 289 (7th Cir. 2002), for instance,
interpreted a bunch of informal business e-mails as modifying a formal,
paper-written contract that said it could only be modified by a “signed
writing.”

Thus, many of the e-mails to and from important agency officials could
affect contracts or other important matters, even though they are not
formally labeled “contracts” or "employment decisons."

Let's turn back to North Dakota’s Retention Schedule. At 300101 it
says, "This series contains contracts, leases, agreements, and
competitive solicitations entered into by the department. Includes all
back-up and closeout materials. RETENTION: Retain in office for the
life of the contract plus six years . . ."

Scads of informal-looking e-mails might qualify as contract "back-up
materials." Many casual-sounding e-mails might be relevant to other
legal matters like employment. Any given e-mail might fit into multiple
categories, each with a different retention period. At bottom, the
State’s Retention Policy is filled with conflicts and causes practical
dilemmas. How should it be interpreted?

If I were a records administrator at a North Dakota agency, I would be
loath to delete the e-mails of important people in 15 days. In view of
the contradictory guidance in the State’s Retention Schedule, I might
reasonably interpret the Schedule as calling for generous retention of
e-mail belonging to important administrators. A responsible
interpretation could call for a seven-year retention period – subject
to special effort to cull out really important records that must be
kept longer.

If I were concerned about unnecessary storage of personal
communications in the e-mails, I’d recommend administrators take their
personal communication to their personal smart phones and keep it out
of the agency's computer systems.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leader in
e-mail records management.

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