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

--Benjamin Wright

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

--Benjamin Wright

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
--Benjamin Wright

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

--Benjamin Wright

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

--Benjamin Wright