Email messages create electronic records.  A company’s email policy must tell employees how to manage those records: that is, which records to keep and which to delete.

Email messages often include important company records that it either should or is legally required to retain.  For example, if applicants apply for a job by email, those email messages are hiring records that, like other hiring records, must be kept for three years.  The company will also want to retain electronic contracts, agreements, records of negotiations, and other types of business related records.

However, most email messages sent and received by a company’s employees can and should be deleted and completely purged in a time frame established by the company.  The company must define which types of emails are considered business records and which are not.  Business records are typically retained longer under a company’s retention policy the period being determined with the help of counsel.  The company can be required to produce email messages if it is sued, just as it has to hand over paper documents.

The more non-related business messages not covered by the company’s retention policy, the more messages the company will have to review and potentially produce during the course of litigation.  The Federal Rules of Civil Procedure (FRCP), which set the ground rules for federal lawsuits, now require parties to a lawsuit to hand over electronic evidence just like any other evidence, not only when the other party asks for it in discovery but also as part of their pretrial disclosures.  However, the FRCP also acknowledge that electronic evidence is different from regular paper documents, in that it may be difficult to access because it’s been destroyed in the regular course of business.

Many companies have a practice of deleting email messages and writing over backup tapes after a certain period of time.  A company won’t face sanctions or penalties for failing to hand over electronic evidence if that evidence was destroyed because of the routine, good-faith operation of an electronic information system.  This could include an email program automatically purging email messages after a certain number of days.

However, such protection does NOT extend to evidence that’s destroyed after the company knows that it is (or might soon be) facing a lawsuit.  Once the obligation is triggered, the company has a legal duty to preserve all evidence that might be relevant to the case, including email messages and other electronic information, at which point the retention policy is placed on a “litigation hold.”

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