Spoliation in Electronic Records Law | Sanctions
In records management one school of thought says employees should be expected to examine each of their e-mail, instant and text messages and make records retention decisions. Under this school, the decisions are 1. do we keep this message or allow our IT system to destroy it quickly, and 2. if we do keep this message, do we keep it in retention category A, category B or category C. I'll call this the make-a-decision school of thought. See the good discussion.
Generally speaking I am skeptical of the make-a-decision school of thought. The reason is that – in this Age of Information – few employees have the time, talent or disposition to make good decisions. The growth in the number of digital messages touching employees is accelerating. The growth will continue to accelerate.
Cases show the legal system punishing enterprises for destroying records too early under the make-a-decision approach.
Arthur Andersen's formal records policy expected its professional auditors to make lots of records decisions (keep this record, destroy that record). But AA's auditors were too busy doing their day jobs, so they procrastinated about making decisions on records related to their biggest client, Enron. In other words, the digital age had swamped Andersen's employees with too many e-mails, faxes and papers. Therefore, they accumulated a backlog of records . . . records that demanded decisions, boring tedious decisions that employees hate. (Keep it or destroy it? Keep it or destroy it? Keep it or destroy it). Then, when crisis rose at Enron, AA's employees deliberated about what to do with this backlog. They deliberated about how to interpret their record retention policy in this unexpected situation, and then (with the involvement of qualified counsel) they made decisions that later looked bad. Andersen's employees destroyed records in the good-faith belief that they were following their policy consistent with advice of counsel. The legal system proceeded to destroy Andersen.
Another case: In Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D.Md. 2005), employee Broccoli complained to management that a superior was harassing him sexually. Multiple managers discussed this complaint by e-mail. Later, after Broccoli sued, the employer could not produce records of the relevant e-mails exchanged among managers. The employer said its usual policy was to destroy (erase) e-mail in 21 days, and it had just followed its policy. The court sanctioned the employer for spoliating e-mail records. The court said it may be okay for a company to destroy e-mail quickly . . . so long as the company suspends destruction with respect to e-mails related to potential litigation like that brought by Mr. Broccoli. In effect the court said the employer should have applied an early litigation hold on e-mails related to Broccoli's complaint.
So what would the make-a-decision school of thought say about the Broccoli case? I interpret it to say that managers must be trained to recognize e-mails that pertain to potential litigation and then to save those e-mails specially (i.e., put them in category X). To me, that approach to e-mail retention does not normally work. Managers are ill-qualified to make such decisions. They don't have time to make those decisions with respect to the ever-growing deluge of e-messages (including cell phone texts, iPhone mail, telephone Twitters, instant message (IM) chat, BlackBerry calendar alerts, voicemails converted to text and more), coming at them.
I therefore offer a hypothesis: Enterprises will fare better in the Age of Information if they tilt toward being very generous in their retention of electronic records . . . and tilt away from expecting individual employees to make one-by-one, keep-it-or-destroy-it records retention decisions.
This is a big topic, and it keeps me humble. I do not know everything. This post does not cover all the issues. I aspire to explore more of the issues, and I welcome input!
Mr. Wright is an advisor to Messaging Architects, thought leaders in e-message management.