Sent to you by pakurilecz via Google Reader: “Print and Retain” E-mail
Disaster via Electronic Data Records Law | How to Win E-Discovery by
Benjamin Wright on 10/1/08
Don't Adopt a Policy that Executives are Disinclined to Follow in
Practice

A famous e-mail spoliation case involved a formal policy that corporate
executives were to “print and retain” important e-mails. In this case
the drafters of corporate records policy misunderstood how a written
policy – which was sound in theory -- would be observed, or ignored, in
practice.

Philip Morris and the federal government were engaged in a long-running
lawsuit regarding marketing of cigarettes. During the lawsuit, the
company was required to preserve important records related to the topic
of the case.

Philip Morris and its attorneys did not trust e-mail records
(executives might make embarrassing, off-the-cuff comments in e-mail!),
so they promulgated a two-part policy. The first part would be to
destroy e-mail in 60 days. But they knew some e-mails would be relevant
to the pending litigation
and therefore the company must put those e-mails in a special category
and prevent them from being destroyed. So the second part of the policy
would be print and retain – a kind of “legal hold”. Written company
policy informed executives they must print and retain paper records of
e-mail pertaining to the topics important to the lawsuit.



In 2004, after this policy had been in effect for some time, the court
reviewed the results. The court was shocked and disappointed to learn
that company executives performed poorly at the task of printing and
retaining. (Question to the reader: Should it come as a surprise to
anyone other than a judge or a lawyer that well-compensated executives
will falter at the job of [a] reading carefully through each and every
one of their e-mails and deciding which ones do and which ones do not
fit into a special legal hold category, and then [b] printing those
special e-mails one-by-one and placing them in a select file in the
cabinet for safekeeping?)

The court learned that some executives printed and retained some
e-mails, but many did not. Reply Memo in Support of the United States'
Motion for Evidentiary and Monetary Sanctions Against Philip Morris
USA . . . Due to Spoliation of Evidence, February 6, 2004, at page 15,
footnote 20.

Further, the court learned that the print and retain policy confused
some executives, as it was just one part of a complex statement of
policies within the enterprise. Id. at page 15, footnote 19

One can surmise that many executives believed they had more important
things to do than (a) staying facile with the details of complex record
retention policies, and (b) rigorously following the clerical duties
specified by the policies.

The company did not implement a program to monitor or audit compliance
with the print and retain policy – even though the company claimed –
and probably honestly believed that it “vigorously monitors and
reinforces compliance with its document retention polices”. Id. at page
14.

Many relevant e-mails were lost.

Said the court: “[T]here is no question that a significant number of
emails have been lost and that Philip Morris employees were not
following the company’s own internal procedures for document
preservation. What is particularly troubling is that Phillip Morris
specifically identified at least eleven employees who failed to follow
the appropriate procedures, and that those eleven employees hold some
of the highest, most responsible positions in the company. These
individuals include officers and supervisors who worked on scientific,
marketing, corporate, and public affairs issues that are of central
relevance to this lawsuit. ”

Concluding that Philip Morris’ practice amounted to spoliation (i.e.
wrongful destruction of evidence), the court levied memorable
sanctions. It fined the company $2.75 million. But more importantly, it
barred 11 key Philip Morris executives from giving testimony in the
trial. This latter sanction was more damaging to Philip Morris than the
fine because it severely handicapped the company’s ability to defend
itself in the lawsuit.

U.S. v. Philip Morris USA Inc. (D.D.C.Civil Action No.99-2496)
(Sanctions Order)

What is the practical interpretation of the Philip Morris case? My
interpretation: a print-and-retain policy does not work. A
print-and-retain policy means that the default is to destroy e-mail
quickly . . . subject to the dubious exception that busy people like
executives will one-by-one select individual e-mails for retention. In
practice busy people (who may receive scores or even hundreds of
messages every day) are unlikely to patiently review every e-mail, make
a responsible decision whether to keep it, and then if required
dutifully ensure it is printed and stored in a paper file.

A modern update to the print-and-retain procedure is to direct
employees to place retained e-mails in special folders like PST files.
Washington Metro learned that professional and managerial employees
fare poorly at that task as well.

--Benjamin Wright

Mr. Wright is an advisor to Messaging Architects.


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