Review Content Policies in Light of Retention Rules


Review Content Policies in Light of Retention Rules

As part of your IM and e-mail retention and deletion training, be sure to address content concerns. It’s no secret that IM and e-mail users tend to be informal, conversational, and—in some cases— recklessly candid in their written comments.

With 52 percent of employers offering no e-mail policy training, and 31 percent taking no action whatsoever to control written content, [9] it’s no surprise that corporate IM and e-mail users treat electronic communication so casually.

If an untrained employee mistakenly believes IM chat is private, unmonitored, and automatically deleted, then that employee may be tempted to write messages that could potentially trigger or impact litigation. Remove that temptation by instituting formal rules, drafting written policies, and clearly spelling out for employees what they may and may not say via IM and e-mail.

Requiring employees to sign and date a form acknowledging that they have read the written policy, understand it, and agree to comply with it will help drive home the point that IM and e-mail are not private communications tools—and that the company has the right to read over employees’ electronic shoulders.

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Real-Life E-Disaster Story:
E-Mail Content Delivers Damning Evidence

Andersen Consulting’s $15 million contract to create an object-oriented database management system (ODBMS) for client UOP soured when Andersen missed too many programming milestones and was fired. Claiming $100 million in damages, UOP sued Andersen for breach of contract and fraud.

During trial preparation, UOP discovered damning e-mail messages that Andersen consultants had left on-site on UOP hard drives. One message written by an Andersen consultant about a colleague read: ‘‘He should be taking classes at a community college, not charging for this.’’

An e-mail from Andersen’s technical manager and lead architect to the rest of the consulting team revealed something about the team’s know-how on the topic at hand: ‘‘Since ODBMS is probably unfamiliar to most of you, I’ve enclosed two relatively brief articles that provide a good introduction to this topic.’’

A few weeks after Andersen was fired, one of the lead consultants sent the team instructions to delete their e-mail messages: ‘‘Before you leave for the last time, you should delete all your electronic files.’’ [10]

It’s illegal to destroy evidence once a lawsuit is underway, or if there is a probability a lawsuit will be filed. Since Andersen had already been terminated and a lawsuit was imminent, this message instructing the deletion of potential electronic evidence was particularly damaging—the type of smoking gun e-mail litigators dream of discovering.

Be proactive. Teach employees about appropriate—and inappropriate—IM and e-mail content before potentially damaging messages are sent, and before electronic evidence is improperly—perhaps illegally—destroyed.

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[9]Ibid.

[10]Elizabeth MacDonald, ‘‘E-Mail Trail Could Haunt Consultants in Court,’’ The Wall Street Journal (June 19, 1997), B1. See also Gregory S. Johnson, Esq., ‘‘A Practitioner’s Overview of Digital Discovery,’’ Gonzaga Law Review, 1997/98, Vol. 33:2.