Chapter 11: Retaining Instant Messaging Business Records Is a Legal Necessity - and a Business Challenge

Overview

‘‘At some point, a party and/or its attorneys must be held responsible for knowing what documents are discoverable and where to find them.’’ ^[1]

Where does your organization stand on the matter of electronic evidence? Do you know the difference between a business record and an insignificant electronic message? Do you understand what type of instant messages, e-mail correspondence, and other electronic documents are likely to be subpoenaed as evidence in the course of a workplace lawsuit or regulatory investigation? Would you be able to locate and retrieve subpoenaed instant messages and e-mail quickly and responsively if ordered to do so by a court or regulatory body?

If your organization is like the 66 percent of U.S. businesses surveyed by American Management Association and The ePolicy Institute, it does not yet have a written e-mail retention and deletion policy in place. ^[2] Perhaps you are retaining everything. Possibly you are saving nothing. Maybe your retention and deletion ‘‘ schedule’’ is a hit or miss proposition.

One fact is clear, however. If your organization is still struggling to manage e-mail retention in a systematic fashion, it is unlikely that you have addressed the very real need to properly retain IM business records and appropriately delete personal and otherwise insignificant instant messages.

^[1]Danis v. USN Communications, 2000WL 1694325 (N.D. IL, Oct 23, 2000). See also Michele Schroeder, ‘‘Emerging Law: State & Federal Statutes Address E-Discovery,’’ Digital Discovery & E-Evidence, January 2002, www.krollontrack.com.

^[2]‘‘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.