Restoring Network Backup Tapes
A landmark case in England teaches that lessons in the US on e-mail retention and destruction policy are equally applicable in the United Kingdom. The lessons: 1. Early deletion of e-mail can cost a company later in litigation. 2. The law is giving all organizations incentive to generously retain e-mail in a centralized archival system. (This incentive would even extend to webmail that employees use for business purposes.)
Digicel et al v. Cable & Wireless, et al  EWHC 2522 (Ch) was a commercial dispute between telecommunications providers in the Caribbean (including St Lucia, St Vincent and the Grenadines, Grenada, Barbados, The Cayman Islands, Trinidad and Tobago, and The Turks and Caicos Islands).
Digicel claimed C&W unlawfully failed to connect Digicel to C&W’s network. Digicel sued in English court. Under the Civil Procedure Rules (applicable in England and Wales), Digicel sought from C&W “disclosure”of e-mail of seven former employees. (In the US we use the word “discovery” rather than disclosure.)
Said the British court: "The 7 individuals are former employees of a [C&W] Defendant company. The e-mail accounts of those former employees were deleted [purged] from the relevant server following the ending of their employment. However, it may be the case that some or all of the individual's e-mail accounts exist on the back-up tapes."
The court's logic illuminates why I argue against the practice of destroying employee e-mail upon termination of employment (aka dismissal). E-mail records of ex-employees are assets of the employer that the employer is often wise to keep.
To search for particular e-mails by way of corporate backup tapes is expensive and tedious. C&W argued that this effort was not legally justified.
The UK court evaluated whether to order searching (restoration) of C&W’s backup tapes. For guidance, it looked to experience in other countries, such as the law of e-discovery in the US.
The court decided to order extensive restoration of back-up tapes.
The court noted that some foreign (such as US) judicial decisions have shifted some of the cost of e-disclosure (e-discovery) to the requesting party (Digicel). The court said it would postpone until later the question whether Digicel should bear any of the costs.
The court’s approach was remarkably consistent with the US approach (citing US authorities), where courts have taught us more about e-discovery and electronically stored information (ESI).
Mr. Wright is an consultant to messagingarchitects.com, leader in sound process for eDisclosure and Groupwise archival. Mr. Wright and Messaging Architects have teamed to educate professionals about eDiscovery. Mr. Wright is also a senior instructor at the SANS Institute, where he teaches the modern law of internal investigations and enterprise data policies.