E-Discovery Includes Backup Tapes?

Are Employees Competent to Implement E-mail "Legal Hold"?

Under its record retention policy, a government entity might delete its e-mail relatively quickly. It might futher direct individual employees to keep important e-records on an as-needed basis. Then, when litigation arises, the entity's policy would be to tell employees to retain e-mails that pertain to the topic of the litigation

But courts are frowning on this approach, in good part because employees are prone to lose records they have been told to keep. The approach can trigger punishment in court, or a mandate that the entity execute the arduous task of sifting through network backup tapes.

A case in point involves Washington Metro Transit Authority.

Advocates for disabled passengers sued Metro, alleging its para-transit services were inadequate. When the lawsuit started, Metro initiated a "litigation hold". It told employees such as facilities managers to keep relevant e-mails. (This meant employees would store chosen e-mails in PST files.)

Metro did not have a central facility for long-term archival of e-mail. Its central e-mail storage retained records for only two months and then destroyed them.

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