Electronic Data Records Law | How to Win E-Discovery

Terminate Employee, Delete Email?

Are Layoffs a Reason to Destroy Electronic Mail Records?

Departure (dismissal) of an employee does not justify destruction of his e-mail records stored on employer equipment. Those records are not the property of the employee or (normally in the U.S., with some qualifications) the vessel of his privacy.  The records are an asset of the employer, showing what the employee did in his capacity as an employee and agent of the employer and how he was supervised.

In our changing economy, employers are learning how to get the same productivity with fewer people.  As they let some employees go, the email records of those employees are part of the employer's valuable institutional memory.

Wasting Manager Time

A manager is wasting her time if she paws through a departing employee’s e-mail to decide what to keep and what to destroy (delete).  It is better just to keep the e-mail, consistent with the retention and privacy practices generally applicable for all employees. 

Email is an Asset of the Enterprise

E-mail records memorialize intellectual property development by employees (such as an inventor or engineer), and they record when and under what conditions trade secrets are shared with business partners.  In intellectual property (IP) disputes, proving the time and date that particular events transpired is essential.  The beauty of email records is that every message is stamped with time and date.

Today, e-mail records are critical to many investigations and disputes; they are even critical under search warrants, where law enforcement seizes records under court supervision. In Jane Doe v. Norwalk Community College (a sexual harassment case), the court sanctioned a college for destroying electronic records of a suspect teacher after he left the college.  The same could happen to any educational institution (public or private . . . higher, secondary, primary, K-12).

E-mail records show what commitments employees did and did not make on behalf of the employer. In Cloud Corp. v. Hasbro,  314 F.3d 289 (7th Cir. 2002), employee e-mail effectively modified a paper-written contract that said it could not be modified except by a “signed writing”.  E-mail can be a legally-binding “signed writing” that memorializes the employer’s rights and responsibilities under contracts.

Federal Sentencing Guidelines

E-mail records showing day-to-day education and supervision of employees are consistent with the expectations of the Federal Sentencing Guidelines.  The Sentencing Guidelines are the framework within which federal judges select penalties for convicted criminals.  If a criminal happens to be an enterprise, the Guidelines call for leniency where the enterprise had taken steps to prevent and mitigate crime by employees.  In other words, bad employees might go to jail, but their not-so-bad employer might avoid stiff criminal penalties.

Under the Sentencing Guidelines, the steps the employer must take include establishing and promoting an employee ethics program and then monitoring and disciplining employee conduct.  To show that an employer did this, electronic mail records (ESI) can be key evidence.  They can document regular education, supervision and discipline of employees.

Update: The Federal Sentencing Guidelines are proposed to be amended so as to place more emphasis on complete record retention.

Policy?

So precisely how long should employers keep email records? There is no one-size-fits-all answer.  I have led in-house workshops to address this question at numerous, diverse enterprises. The outcome of these workshops has varied, depending on many factors, including corporate culture.

In my experience, the best email retention policy is one that is developed by collaboration of the various stakeholder departments in the enterprise (legal, IT, HR, operations et al.).  Normally, these different stakeholders start with different positions on what the policy should say.  But, in my experience, after the stakeholders have talked through the issues, they tend to compromise their positions and coalesce into a policy that is unique to the enterprise.

–-Benjamin Wright

Mr. Wright is senior instructor for the SANS Institute, where he delivers professional training on the law of e-discovery, e-records management and internal investigations.

P.S.  Employers may believe that by deleting email they are preventing a future eDiscovery adversary from conducting a so-called fishing expedition through the records.  However, I argue that the advantages of generous record retention outweigh the risk of a fishing expedition.

Porn | Employee Computers

Hostile Workplace Lawsuits in the Age of Networked Computers

In the workplace, electronic pornography is legal poison.  A singular lawsuit against the Chicago Police Department demonstrates the value of technical measures to filter, screen or block porn (including lewd spam).

In a hostile workplace lawsuit against an employer (whether private sector or government), the existence of porn on work computers or in work e-mail systems can be highly prejudicial.  Even though the employer objected to porn and enforced an explicit policy against it, its presence can reflect horribly on the employer as a case goes to a public courtroom.

In Williams v. City of Chicago (US Dist Ct, N.D. Illinois, E Div 03C2994, Jul 13, 2004), e-pornography backed the police department into an indefensible position.  Officer Williams had complained more than once about a sexually offensive work environment, including both foul comments by co-workers and nasty images on computers (e-mail and otherwise).

The department had a formal policy against such behavior, and Ms. Williams' supervisors endeavored to uphold that policy.

In pursuit of the policy, supervisors had promptly investigated and responded to her complaints, including removal of pornography.  The city argued that on account of its good policy it should be entitled to "summary judgment" in the case. Under summary judgment, the city would win the case before it went to the jury.

However, the court ruled there was insufficient evidence to award summary judgment to the city. In other words, the court said the case should go to a jury for decision.   According to the court: "If the jury determines that pornography was so prevalent that the City should have known about it, the jury could conclude that the City was negligent in discovering the harassment.  Similarly, if the jury determines that the City knew about the pornography because others had complained about it, the jury could conclude that the City was negligent in remedying the harassment."

Wow.  How can the police department (or a sherrif's office) withstand a jury trial focused on the amount of pornography on the department's computers?  Such a public trial would be highly embarrassing, even if the department eventually won the case!  The local media would have a field day.  At this point, the city has strong incentive to settle – at considerable expense – with Ms. Williams.  (I can't tell from the court's opinion whether the city did settle with Mr. Williams, but I'll bet it did.)

Behold the city's unenviable position.  Even after it settles, its problem remains.  The continued presence of Internet pornography can prejudice the city in future cases brought by future employee-plaintiffs, just as it did in Ms. Williams' case.  A case could rise directly from sexual harassment allegations, or from allegations of retaliation following a complaint about porn.

I therefore argue an employer like this police department has good reason to seek technical measures to mitigate its problem.  Although technical filters and blocks are imperfect, they can materially reduce the quantity of pornography in workplace e-mail and systems.

–-Benjamin Wright

 Mr. Wright teaches Internet Records and Security Law for the SANS Institute, where he covers topics like investigations into cybertheft and HR allegations.