A records disaster area!

© 2000 by Charles A. Plesums, Austin, Texas

One of the ongoing topics of concern is e-mail. If you keep too much, it may become burdensome for legal discovery (even more than for storage capacity). Anyone who has had to produce copies of all their mail as part of a legal discovery probably is still scarred by the experience. Also, if you casually keep old documents, they may come back to haunt you, like some of Bill Gates's memos from years ago, or the documents that are being discovered at Firestone.

The textbook answer is to have a formal policy (with user training and audit to be sure that the policy is being followed). That policy might include provisions such as

The idea that the official record can be a printed document is now obsolete - the electronic form has more information about routing, dates, addressees, etc. (called the meta data), that is equally part of the evidence. The electronic record is searchable and processable, which can be part of the legal demand. We must keep the electronic form of our electronic records.

Note that what many knowledge management projects are trying to do conflicts with the records retention best practices. A common knowledge management technique is to summarize e-mails in a data warehouse, retained forever. The body of the e-mail is used to see who is discussing the topics of interest, and the distribution list is used to identify those with interest or knowledge in the subject. The catch is that the essence of the e-mail can be reconstructed from the data warehouse, and thus may be subject to legal "discovery" forever.

Even if we have perfect internal management of our e-mail, we have no control of what the recipient retained, or where that mail was forwarded. When the opposing counsel brings that forwarded copy to court, it is likely to be admissible as evidence (can someone say "I received this copy in the normal course of business, had reason to believe it was reliable, and acted on it"?). In addition to being admissible by the judge, it is likely to be believable to the jury.

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©2000 by Charles A. Plesums, Austin, Texas USA. ALL RIGHTS RESERVED. You may license additional copies of this document through a nominal royalty payment as specified on www.plesums.com.