Electronic Data Records Law | How to Win E-Discovery

Recorded Public Information

Erase Government E-mail in 15 Days?

Many state government archivists publish record retention schedules for state agencies.  Often these schedules (or statements related to them) address e-mail records.  Many of the 50 official state schedules for e-mail retention are collected at this LINK. If you study all these schedules, you will hear many conflicting ideas.

Let's look at one schedule, picked at random – North Dakota’s General Records Retention Schedule dated 9/3/2008.

For e-mail, at 450102 North Dakota says, "Retain in office until the record status is determined, but no more than 15 days, then delete.  If the e-mail message is an official record made or
received pursuant to law or in connection with the transaction of official business,
the retention period should be covered by an existing record series."

Whoa. That language might easily be interpreted to require really fast destruction as the default. That default would be subject to someone making a decision that an important e-mail is in fact important. If one were to interpret this Schedule to require quick deletion of most e-mail, that interpretation would seem hazardous under present trends in litigation. As I've argued elsewhere, the legal system is giving all enterprises, including state agencies, incentive to be generous in e-mail retention.

As the volume of e-mail, text and other e-messages soars, employees don't have time to "determine the record status"  of all those messages. Further, the making of such determinations on a message-by-message basis can be a waste of government resources (employee time).

Electronic messages can have subtle and unexpected legal effects. Cloud Corp. v. Hasbro, 314 F.3d 289 (7th Cir. 2002), for instance, interpreted a bunch of informal business e-mails as modifying a formal, paper-written contract.  The e-mails were interpreted as modifying the contract, even though the contract itself said it could be modified only by a “signed writing.”

Thus, many of the e-mails to and from important agency officials could affect contracts or other important matters, even though they are not formally labeled "contracts" or "employment decisions."

Let's turn back to North Dakota’s Retention Schedule. At 300101 it says, "This series contains contracts, leases, agreements, and competitive solicitations entered into by the department. Includes all back-up and closeout materials. RETENTION: Retain in office for the life of the contract plus six years . . ."

Scads of informal-looking e-mails might qualify as contract "back-up materials."  The process of judging whether a particular communication does or does not constitute contract "back-up material" is not easy. Reasonable, well-educated people can have different points of view on that topic.  Further, many casual-sounding e-mails might be both contract "back-up material" and relevant to other long-term legal matters like employment.  Any given e-mail might fit into multiple categories, each with a different retention period.

In addition, some employees go on vacation or sick leave.  Should their e-mail still be deleted in 15 days?  One might read the literal words of the Retention Schedule as requiring 15-day deletion, but that reading defies common sense.

At bottom, North Dakota's Retention Schedule is filled with conflicts and causes practical dilemmas. How should it be interpreted?

If I were a records professional at a North Dakota agency, I would be loath to delete the e-mails of important people in 15 days.  In view of the contradictory guidance in the state’s Retention Schedule, I might reasonably interpret the Schedule as calling for generous retention of e-mail belonging to important administrators.  A responsible interpretation might call for a seven-year retention period – subject to special effort to cull (screen) out really important records that must be kept longer.

If concerned about unnecessary storage of personal communications in the e-mails, administrators could take their personal communication to their personal smart phones and keep it out of the agency's computer systems.

–-Benjamin Wright

Mr. Wright teaches e-discovery and e-records policy law at the SANS Institute.

[Footnote:  I've discussed North Dakota here, for no particular reason.  I might have just as easily chosen any other state . . . California, Florida, Georgia, New York, Illinois, Pennsylvania, Missouri, Ohio, Virginia, Colorado, Oklahoma, Arizona, Utah, Nevada, Washington . . . who knows.  In writing this post, I did not research North Dakota law beyond what I cited.  I acknowledge that an expert in North Dakota administration law might point to other features of the state's law (cases, rulings and so on) that suggest different interpretations.]

Electronic Mail Erased

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!

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leaders in e-message management.

Health-care eDiscovery | Email Destroyed

Duty to Preserve Electronically Stored Information (ESI)
Standard for E-mail Litigation Hold

When a lawsuit is filed or reasonably anticipated, parties are expected to apply a litigation hold to ensure records are not destroyed (which includes ensuring emails are not erased).

In a class action case concerning rights to state-paid medical care (connected with Medicare), a federal trial court has criticized Tennessee state agencies (Defendants) for failing to preserve electronic records.  Said the court:

"Defendants left their employees to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant o[r] material information in this complex action.  Under the State's computer system, after six to seven months emails were destroyed.  Some key custodians did not have backup tapes for their work station computer.  Given the complexity of this action, isolated statements [from counsel to employees] about the litigation hold over a period of several years are equivalent to the lack of any meaningful litigation hold." John B. v. Goetz, 2007 WL 3012808 (M.D. Tennessee Oct. 10, 2007), Memorandum, page 126.

The court went on to criticize the inadequate litigation hold at Defendants' contractors.

The court’s statements open the possibility for e-discovery sanctions against Defendants.    

The case reminds how courts can scrutinize e-mail retention decisions years after the decisions are made.  It illuminates the danger when an enterprise leaves retention and destruction responsibility in the hands of individual employees (or contractors), who may not be fully aware of the legal implications of that responsibility.  Accordingly, I advocate generous, centralized retention of enterprise e-mail and text messages.  By "centralized," I mean the records are retained in an enterprise-controlled archive such that employees cannot destroy their individual records.

Here a federal court second-guessed Tennesee state agencies.  But in theory the state involved could just as easily have been Iowa, Oregon, Nevada, Texas, Idaho or any other.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, leading provider of e-mail archival solutions for healthcare.  He also teaches e-data law at the SANS Institute.