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

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