Chapter 14: Beware the Destruction of Instant Messaging Evidence

Overview

IM Rule # 26: Beware: Destroying instant messaging evidence after a lawsuit is filed is illegal.

‘‘Shut up and delete this e-mail.’’—JP Morgan Chase Banker ^[1]

Some regulated businesses benefit from electronic retention rules that are clearly spelled out. For example, the Sarbanes-Oxley Act, which is aimed at strengthening accounting oversight and corporate accountability, requires the retention of certain electronic accounting records.

Unregulated companies, on the other hand, often face a much fuzzier picture when it comes to retaining and preserving instant messages, e-mail records, and other electronic data that may be relevant to current, pending, or future litigation.

When should you start preserving electronic evidence? When a terminated fifty-five-year-old male employee walks out the door, threatening an age-discrimination lawsuit? When a female staffer files an EEOC claim, alleging a supervisor has sexually harassed her? When a client starts complaining about the quality of your products or services? When you first suspect litigation of any kind is likely to occur?

At the end of the day, it’s best to adopt the philosophy that when it comes to the retention of instant messages, e-mail, and other electronic evidence you are better safe than sorry. As one court put it: ‘‘A party is obligated to retain evidence that it knows or reasonably should know may be relevant to pending or future litigation . . . obviously service of a discovery demand places a party on notice to preserve the materials explicitly requested, but the duty to preserve arises whenever a party has been served with a complaint or anticipates litigation.’’ ^[2]

In other words, preserve instant messages, e-mail, and other electronic business records today or put your organization at risk of a spoliation problem—and subsequent penalties—tomorrow.

^[1]Nicholas Varchaver, ‘‘The Perils of E-Mail,’’ Fortune ( February 17, 2003), 96.

^[2]Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y., 2000). See also Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.