Should Corporate Executives Prefer Early Deletion of E-Records?
Some executives fear that e-mail will come back to haunt them, so they minimize their use of it. And they want corporate e-mail destroyed quickly.
But electronic records came to the rescue of David Stockman, former CEO of bankrupt auto parts maker Collins & Aikman. Stockman and other executives were indicted by prosecutors for alleged lying about the company’s financial condition. Prosecutors apparently based the charges on an investigation by an outside law firm working on behalf the company’s board of directors. Stockman and his co-defendants maintained that they were victims of a rush to justice. They said the law firm and the prosecutors failed to examine all the complex evidence carefully.
They and the government undertook to assemble a database containing 10 million company records, including (no doubt) copious e-mail records. Key topics in the case included C&A's:
* day-to-day internal communications among executives and employees regarding the accounting and invoicing for particular transactions, and
* day-to-day communications with suppliers -- involving innumerable, detailed, nitty-gritty negotiations and documentation over topics like transaction-by-transaction rebates.
From this massive database, the defendants drew evidence, bit-by-tiny-bit, to tell their side of the story. In a database of this size, the ability to find the right evidence depends much on the careful selection of search methodology and search algorithms. Sometimes the only effective way to comprehend what is in the database is to engage a selective sampling of records.
In other words, the executives were fortunate that the company retained so many records like e-mail. E-archives exonerated the defendants.
In a putative corporate scandal, the relevant e-mail records can be maddeningly plentiful. A large number of computer-based records is unsurprising in a modern white collar crime investigation or police raid of corporate offices.
In this case, the defendants' legal team patiently mined the company’s email (and other records) to build a convincing case that prosecution was unwarranted.
As the quantity of records in a case swells like this, the ability of parties to review records one-by-one declines. Increasingly the law will favor those who can draw on statistical methods (or linguistic analysis) to tease out the evidence that tells their side of the case.
(David Stockman is most famous as the Ronald Reagan’s budget director in the 1980s.)
Mr. Wright is an advisor to Messaging Architects, thought leader in enterprise governance and records management. He also delivers training in cyber defense law at the SANS Institute.