Struggling with Instant Messaging and E-Mail Business Record Retention? You Are Not Alone

The proliferation of electronic communications tools is a relatively recent phenomenon. Technology is ever-changing. Business owners, executives, and IT professionals are often confused about electronic business record retention. Even the courts’ federal and state rule advisory committees are struggling to assess and as necessary revise rules governing issues such as what electronic data is discoverable, how that information should be produced, and which litigants should bear the costs of producing electronic evidence. ^[3]

In the face of all that confusion, these facts remain clear. The courts routinely recognize IM, e-mail, and other electronic data as discoverable evidence. Fourteen percent of organizations already have had employee e-mail subpoenaed, and one in twenty has battled a lawsuit triggered by employee e-mail. ^[4] Lawyers regularly request instant messages and e-mail correspondence from opponents—either to uncover a smoking gun document or create a spoliation problem for the other side. Companies that fail to produce subpoenaed IM and e-mail records are penalized with court sanctions that range from the imposition of monetary fines, to instructions that negatively influence juries, to decisions to quickly settle what now may be a no-win case.

It is in your organization’s best interest to make electronic business record retention a priority as you develop and implement your strategic IM and e-mail management rules and policies. Your success (or failure) at properly retaining and archiving IM and e-mail today may make (or break) your case tomorrow, should you be hit with a workplace lawsuit. ^[5]

Step One: Define Your Business Records

To effectively protect your organization’s assets, reputation, and future, you must properly identify and effectively manage IM, e-mail, and other business records (electronic and traditional paper).

Unfortunately, ‘‘business record’’ cannot be universally defined. Business records vary by organization, industry, and sometimes by department. Every organization must, therefore, develop its own clear and consistent definition of a business record.

Basically, a business record is a document (electronic or paper— instant message, e-mail, or otherwise) that provides evidence of business-related activities, events, transactions, negotiations, purchases, sales, hiring, firing, and so on. ^[6]

Because the value of a business record is determined by its content, there can be no one-size-fits-all definition. For an international commercial bank, for example, valuable business record content may include loan agreements, transaction details, customer account summaries, and employees’ personnel records. A sole practitioner operating an advertising agency, on the other hand, may define a business record as a business proposal, client contract, or purchase order for advertising time or space.

Step Two: Educate Your Employees About Instant Messaging and E-Mail Business Records

As part of your comprehensive IM and e-mail management program, you must define ‘‘business record’’ in the context of your company, its various departments, and industry. You must establish rules, policies, and procedures for the retention of business records and the deletion of nonessential, nonbusiness-record information. And you must educate all employees—from the CEO to the summer intern—about your organization’s electronic business record policy and program.

Don’t expect employees on their own to understand what an electronic business record is, or what each individual employee’s role is in the business record retention process. Educate your employees. Explain what a business record is. If a comprehensive, companywide definition won’t do, provide each department with its own definition of an electronic business record.

Discuss why IM and e-mail business records must be retained, as well as how and when they should be retained. Be sure all employees understand the difference between an electronic business record that must be retained, and a personal or otherwise insignificant e-mail or instant message that can be deleted.

Stress the fact that the organization’s written IM and e-mail retention and deletion rules and policies must be strictly followed. Prohibit scofflaw employees from saving data to their hard drives or discs. Impose and enforce penalties—up to and including termination—for employees who violate the organization’s written electronic business record retention policy. ^[7]

Only 27 percent of employers offer e-mail retention and deletion policy training to employees, according to the ‘‘2003 E-Mail Rules, Policies, and Practices Survey.’’ ^[8] Don’t leave retention policy compliance to chance. The proper retention of electronic business records—and the thorough deletion of nonrecords, including potentially embarrassing personal material—can help prevent the loss of critical data, while preserving ‘‘must have’’ evidence.

IM Rule # 22: Instant messaging creates business records. Treat it appropriately.

^[3]Michele Schroeder, ‘‘Emerging Law: State & Federal Statutes Address E-Discovery,’’ Digital Discovery & E-Evidence, January 2002, www.krollontrack.com.

^[4]‘‘2003 E-Mail Rules, Policies, and Practices Survey,’’ conducted by American Management Association, The ePolicy Institute, and Clearswift. Survey findings available online at www.epolicyinstitute.com.

^[5]Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.

^[6]Ibid.

^[7]Ibid.

^[8]‘‘2003 E-Mail Rules, Policies, and Practices Survey,’’ conducted by American Management Association, The ePolicy Institute, and Clearswift. Survey findings available online at www.epolicyinstitute.com.