How Long to Retain Local Government Electronic Mail?

Would an E-mail Archive Appliance Help?

Dallas County, Texas, is debating how long to store electronic mail. Some have proposed that each e-mail record be deleted after 90 days unless an employee specifically requested longer retention.

But others fear that such a practice would lead to the destruction of records needed for compliance with laws like the open records act and to legal risk if an employee makes a mistake.

The county says that a 90-day policy is tempting because the retention of e-mail is costly and clumsy under its existing storage system.

Those advancing the proposed 90-day policy say the county should keep only messages that employees have examined one-by-one and determined to be official county records. They point to Texas state guidelines that call for the long-term retention of only official records, not all electronic mail. Hence, they believe good records management requires each employee to invest considerable time and attention in the process of reviewing individual records . . . Continue Reading

Digital Forensics: Private Eye (PI) License Required for E-Discovery?

Stop-Light Camera Company Liable in Texas?

Does a business need a state-issued license to collect and evaluate electronic records in preparation for litigation? The question is becoming a hot topic in modern lawsuits.

A court in Dallas, Texas, concluded the firm running an automated stop-light enforcement camera was an outlaw because it lacked a professional private eye (PI or private investigator) license. As the operator of the system, the firm was involved in fetching and analyzing electronic records so it could present them in judicial proceedings. This case has sparked a wildfire of complaints, where motorists in the Lone Star State are objecting to traffic tickets, requesting return of fines they've paid and berating public servants who support red-light traffic cameras.

In a nutshell, motorists are contending that judges should ignore the digital camera evidence because it was managed by a rogue, unlicensed private eye.

The quarrel is an surprising consequence of recent Texas legislation (House Bill HB 2833) compelling digital forensics professionals to be licensed as professional private eyes . . . Continue Reading

E-mail Records for Enterprise Stability and Productivity

Archives Advance the Work of the Institution

As society and the economy change, an enterprise needs memory. Whether the enterprise be a charity, a local government, a police department, or a corporation, institutional memory helps fulfill the enterprise's purpose.

A key tool for nurturing that memory is the archival of electronic messages. E-message archives contain a detailed chronology of which employee did what, why and how. They explain the thinking when a new marketing channel launched. They remind who contributed to the design of a new policy. And so on.

Employees come and go. Executives come and go. But enterprises last. If they shred the electronic messages of their leaders and managers, they undermine their own productivity. And they undermine accountability.

A decade ago . . . Continue Reading

Delete Government Electronic Mail in Two Weeks?

Record Keeping in State Government

Most state governments publish record retention schedules to direct their agencies on the storage and destruction of records. Commonly these schedules set rules for e-mail records. The schedules published by the many different states are not uniform. Taken as a whole they embrace many contradictory ideas.

Let's examine one schedule – North Dakota’s General Records Retention Schedule, revised September 8, 2008.

Regarding electronic mail, at 450102 North Dakota directs: "Retain in office until the record status is determined, but no more than 15 days, then delete. If the e-mail message is an official record made or received pursuant to law or in connection with the transaction of official business, the retention period should be covered by an existing record series."

Yikes. That statement could be understood to mandate fast destruction as the norm. The exception to that norm would entail a person making a judgment that an important e-mail is in fact important. If agency were to read this Schedule to require swift erasure of most e-mail, that interpretation would seem dangerous . . . Continue Reading

Sedona Conference on E-mail Archival Policy

When to Destroy Instant, Text and Electronic Message Records?

An expert at Messaging Architects submitted a question: "I have been doing research on legal issues impacting the government sector. More and More I read about how the Sedona Principles that came out from the Sedona Conference affects a judge's decision in a case. Is there anything you can share on the subject?" Answer:

Courts are right to look to the Sedona Conference for authority on electronic records law. The Conference's statements are thoughtful, well-researched and carefully written. The statements are most valuable after a lawsuit has been filed.

But, prior to the lawsuit, how helpful are the statements to an enterprise as it establishes records practices? In my modest estimation, The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age do not contribute much. Nothing in the Guidelines is wrong. Still, . . . Continue Reading

Destroy Ex-Employee Electronic Mail?

Fire an Employee . . . Trash His E-mail?

Termination of an employee does not give reason for erasing his e-mail records. Those records are not the property of the employee or (usually) the instrument of his privacy. The records are an asset of the employer, showing what the employee did in his role as an employee and agent of the employer and how management oversaw him.

A manager is spinning her wheels if she hunts through exiting employee’s e-mail to decide what to retain and what to discard. It is wiser just to keep the e-mail, consistent with the retention and privacy practices generally applicable for all employees.

E-mail records document intellectual property development by employees, and they record when and under what conditions trade secrets are shared with trading partners. In intellectual property disputes, proving the time and date when particular events transpired is essential. The advantage of e-mail records is that every message is labeled by date and time.

Today, e-mail records are central to many investigations . . . Continue Reading

Block & Filter Smut from Enterprise Electronic Mail Systems

Hostile Work Environment Claims in the Computer Age

At places of employment, pornography is legal poison. A singular lawsuit against the Chicago Police Department illuminates the need for technical filters and blocks to combat e-porn.

In a "hostile workplace" lawsuit against an employer, the existence of porn on work computers or in work e-mail systems can be highly prejudicial. Even though the employer objected to porn and enforced a policy of no tolerance for it, its presence can reflect horribly on the employer as a case advances to a public courtroom.

In Williams v. City of Chicago (US Dist Ct, N.D. Illinois, E Div 03C2994, Jul 13, 2004), e-pornography backed the police department into an indefensible corner. The plaintiff, Officer Williams, had complained more than once about a sexually offensive work environment, including both repulsive remarks by co-workers and disgusting pictures on computers (e-mail and otherwise). Continue Reading

Executives Perform Poorly at Selective E-mail Retention & Destruction

Electronic Mail Spoliation

A record retention policy is dangerous if it expects employees or executives to perform tasks – such as selective retention of e-mail – that they are unlikely to perform in practice.

Philip Morris learned how awkward a formal "print and retain" electronic mail records policy could be. The people who managed the company's records policy miscalculated how it would be observed, or forgotten, in the day-to-day life of the business.

Philip Morris and the US Department of Justice were locked in a years-long lawsuit over the business of selling cigarettes. While the lawsuit was pending, the company was required to preserve important records related to the subject matter of the case.

Philip Morris and its lawyers were suspicious of e-mail records (reasoning that executives might make informal, unguarded remarks in e-mail!), so they promulgated a two-part policy. The first part would be to delete e-mail after two months. But they knew some e-mails would be needed for the pending lawsuit with the government, Continue Reading

Trade Secret Enforcement with E-Records

Winning E-Discovery with Superior Records

Burst.com's e-mail records bolstered the company in its intellectual property lawsuit against Microsoft. The background: Burst had signed a written, mutual non-disclosure agreement with Microsoft, in which Microsoft agreed not to use secrets revealed by Burst without Burst's permission. Then Burst confidentially revealed trade secrets about Burst's streaming media technology in the hopes that Microsoft would want to license it. Microsoft elected not license it, but it did develop streaming media technology, claiming its engineers did so without using any of Burst's secrets. Burst was suspicious. Burst eventually claimed Microsoft chose to use these trade secrets without Burst’s consent, and without compensation to Burst.

So Burst sued, claiming misappropriation of trade secrets and breach of the non-disclosure agreement. During the discovery stage of the litigation, Microsoft was required to reveal all of its e-mail records on the topic, and Microsoft did turn over a large number of e-mails regarding its communications with Burst and its streaming media technology in general.

But in court Burst argued Microsoft did not dutifully comply with the discovery requirements. Burst argued that Microsoft had illegally withheld some e-records or lost them. To support its argument, Burst brandished numerous of its own e-mail records showing particular exchanges between Burst and Microsoft, where Microsoft had produced no matching records on its end.

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Deleting E-messages Too Soon

The Law of Spoliation and Obstruction of Justice

In enterprise records administration one philosophy says employees should be expected to examine each of their e-mail, instant and text communications and make records retention decisions. Under this philosophy, the decisions are 1. do we keep this communication or allow our computer system to destroy it quickly, and 2. if we do keep this communication, which retention category do we keep it in, A, B or C? I'll call this the make-a-decision philosophy.

As a general rule, I am skeptical of the make-a-decision philosophy. The reason is that – in our digital world – few employees have the time, skills or disposition to make good decisions. The number of digital messages touching employees grows and grows and grows. It will continue to grow rapidly.

Court cases show the legal system penalizing organizations for deleting records too early under the make-a-decision philosophy.

Arthur Andersen's written records policy directed its staff to make lots of records decisions (keep this record, destroy that record). But Andersen's accountants were pre-occupied with their regular duties, so they procrastinated about making decisions with respect to records related to their client named Enron. In other words, the computer age had overwhelmed Andersen's staff with too many e-mails, faxes and paper documents. Therefore, they amassed a backlog of records . . . records for which decisions were required under the written policy. Then, when Enron approached disaster, AA's staff debated about what to do with this backlog. They debated about how to interpret their record retention policy in this unanticipated state of affairs, and then (with the involvement of an experienced in-house lawyer) they made decisions that later appeared to be sinister. . . . Read more