Nix Smoking Gun Text, E-mail, e-Discovery

Self-Regulation In the Networked Age

Cell Phone, Instant Messages (IM) & Twitter in Litigation and Investigations

The Institute for the Advancement of the American Legal System (IAALS) issued a major report on how businesses can prepare for e-discovery. E-discovery is the requirement to disclose relevant electronic records in litigation.

Electronic business records are dangerous because they can evidence illegal or embarrassing conduct. Foolish employee e-mail, IM, text or cell phone messages can be hard for a corporation to defend in court.

So, as a matter of policy, what is a corporation to do?

The usual response is to place e-records on a short retention schedule, like 180 days. But systematic destruction of e-records brings its own troubles. Court cases penalize enterprises for destroying records too early.

So rather than recommend that businesses destroy records quickly, IAALS recommends that businesses organize electronic records so they are easier to search. A key tool for good organization and searching is an e-mail archival system.

The idea is that most businesses, most of the time, try to be ethical and law-abiding. If they can search for and find all their records, they can find the ones that tell a favorable story. On balance the good records will often outweigh the few bad ones.

Managing Risk
An additional response draws from the philosophy that just as information technology breeds risk, it can be used to reduce risk and provide healthy feedback.

Information technology is all about communication. The communication in employee e-mail will sometimes be unfortunate. But the damage from unfortunate messages can be mitigated by positive messages. Technology enables a business to propagate positive messages.

Here is an example of a positive message: "Acme Corporation does not condone unethical, unfair or illegal activity or statements on the part of itself or its employees. The company repudiates any such activity or statement, and wants to correct it if it ever exists. If any person knows of unethical, unfair or illegal activity or statements by the company or employees, Acme asks that person promptly to notify the company." To get this message out, technology affords corporations myriad tools.

Such a message can be posted on web sites and business-oriented social network pages. It can be published in product catalogs or with purchase orders. It can be referenced at the bottom of e-mails or text messages, or in IM sessions. It can be stated multifarious ways – a corporation can rotate 25 different messages at the bottom of all e-mails. Thus, when bad e-mails are later revealed to an opponent in e-discovery, they include positive statements to temper the negative ones.

The multitude of messages can include humor. A humble example:

Such a message is like the sign on the back of a commercial vehicle: "Report unsafe driving at 1-800-XXX-XXXX." Not only does it hasten the delivery of critical information to the company when it has a problem, it nurtures a culture of honesty and ethical behavior. When an employer repeats a policy through multiple media, employees absorb it.

Legal Incentive
Our legal culture rewards enterprises that genuinely regulate themselves. The Federal Sentencing Guidelines prescribe reduced sentences for corporate criminals that implement programs to deter and report wrongdoing. Government prosecutors are naturally more lenient on defendant organizations that earnestly strive to keep their houses in order. (See the statement of Deputy Assistant Attorney General Robert S. Litt.)

When an enterprise broadcasts it wants to do the right thing, and it requests notice if it is failing, the enterprise casts a burden on its potential adversary (or whistleblower). Effectively the enterprise says, "If you are being mistreated, or if you witness misbehavior, then please tell us now so we can bring it to a swift end and repair the damage." If, after getting this message, an adversary delays in reporting bad news she possesses, she may be opening herself to blame or discredit.

Inspiration from Sexual Harassment Law
Consider the Ellerth/Faragher line of cases in the sexual harassment field. Those cases say an employer is absolved of liability if it maintains a reasonable program against sexual harassment and the harassment victim fails to take advantage of the remedies available under the program.

By the same token, the video above shows a business that is genuinely promoting a program and culture of compliance. If adversaries like regulators, whistleblowers or plaintiff lawyers do not take advantage that program and report the bad behavior promptly to the business, then the adversaries' credibility diminishes.


Mr. Wright teaches the law of data security and investigations at the SANS Institute.

New for 2012: How to archive text messages as legal evidence.

For more corporate record retention, see my article on e-mail archives.