YellowKing wrote:Yeah Jeff V's explanation is my understanding.
If your policy is to keep mail three years, and someone brings a lawsuit requesting an email that is five years old, you're not in trouble.
If your policy is to keep mail three years, someone brings a lawsuit requesting an email that is two years old, and you can't provide it - you're in a heap of trouble.
At some point our legal department determined we retained mail for seven years, probably based on the time necessary to cover a range of external laws and internal factors.
I'm not in legal/compliance so I don't know how all these policies are enforced, but I do know we go under regular external audits so I'm sure there are things in place to keep us honest. Ultimately, though, it's cheaper to keep everything under litigation hold than to try to figure out what's an important document and what's pictures of Mabel in Accounting's new cat.
That's not 100% accurate.
In terms of document retention, a company is free to apply whatever retention policy they want for whatever time period they want, or no policy at all. When it comes to destroying documents (otherwise known as "spoliation of evidence"), the essential elements are (1) were emails destroyed in anticipation of litigation, and (2) did that destruction prejudice the other party (e.g., was the destroyed email relevant and not duplicative of other evidence).
If your company has a 2 year retention policy, and you wipe out email that's only a year old, you may be in trouble with your company for violating company policy, but you're not going to be in trouble with the court UNLESS the company knew that litigation was on the foreseeable horizon AND the email you deleted would have been relevant to the matters at issue in that actual or potential litigation.
In practice, the way this works is, once a company meets a threshold level of apprehension that a lawsuit may be imminent (because they know of a likely claim or they've received a demand), a litigation hold is put in place where all likely custodians of potentially relevant documents need to preserve whatever potentially relevant stuff they have. It's wise for companies to take a pretty expansive view of "relevance," at this stage, but, again, we're not talking about preserving pictures of Johnny's birthday party. Just potentially relevant stuff.
Interestingly (maybe just to lawyers), there have been significant amendments to the Federal Rules of Civil Procedure recently that have addressed electronic discovery specifically. One of the important changes to the rules applies to the available sanctions for failure to comply. Check out Rule 37(e):
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Note that under amended Rule 37, unless there's a showing that a party acted intentionally to destroy relevant email (or other ESI) in order to screw the other party, the sanctions are limited to only that which is necessary to cure whatever prejudice the other party suffered.
Of course, this all applies to parties engaged in civil litigation. Government agencies/departments may have other obligations to preserve public records in order to comply with FOI requests and what not.
