Global Electronic Mail Record Retention-Destruction Policy
E-discovery (EDD) is a topic of growing importance in international dispute resolution. Although the US courts are considered the hotbed of e-discovery (along with, to a lesser extent, the other common law-based courts of UK, Canada and Australia), the topic cannot be ignored anywhere in the world. For this reason, foreign (i.e., non-US and non-English tradition) organizations have growing reason to retain plentiful e-mail records, even if they have little or no exposure to the jurisdiction of US or other English-tradition courts.
Item One: The Chartered Institute of Arbitrators (known as CIArb, based in London) has published the Protocol for E-Disclosure in Arbitration. In general, the Protocol is akin to the 2006 e-discovery amendments to the US Federal Rules of Civil Procedure. It confirms that “e-disclosure” (British for “e-discovery”) is a legitimate, even common issue in modern business-commercial arbitration, regardless of whether the common law countries (e.g., US, UK, Canada, Australia, New Zealand and in Asia Signapore) are involved. Further, similar to amended FRCP 16(b) and 26(a) & (f), the Protocol urges parties to confer early and often on e-discovery issues and seek to reach agreement on matters such as the scope, method and cost of e-discovery. And, similar to amended FRCP 26(b)(2), the Protocol presumes that hard-to-reach e-data (electronically stored information or ESI) are outside the scope of disclosure, though the presumption can be overcome.
Item Two: Could the e-discovery law of American courts hold that a continental European government, which hails from a civil law tradition (sometimes called the Roman law tradition), spoliate e-mail records? The glaring answer is yes. In Reino de Espana v. American Bureau of Shipping, 2006 U.S. Dist. LEXIS 81415 (S.D.N.Y. Nov. 3, 2006), the national government of Spain sued a US enterprise, in US federal court, regarding an oil spill near Spain. But as Spain initiated this lawsuit, it failed internally to implement an effective litigation hold on its own e-mail records. Spanish government computers lost, destroyed, deleted, erased relevant records. The US court ruled that the government of Spain was at fault for spoliation.
The law of spoliation is a key reason that US institutions have learned that generous, centralized retention of e-mail is today wise. The Spanish government has now learned the same lesson.
Update: Practical experience in Germany shows that businesses are, legally-speaking, wise to keep their e-mail records.