Hardly ephemeral, email is often the “smoking gun” a plaintiff needs to extract a settlement. But email, like other electronic documentation, need not be retained forever, if you follow a document retention policy. Creating such a policy typically helps an organization streamline and improve its internal communications, archiving procedures, and other business processes.
Many years ago when I worked at Novell, management would regularly send email instructing every employee to carefully find and forward all email regarding a particular subject. The instructions, typically made at the behest of the legal department also asked that employees not delete anything related to that subject. However, after receiving about four such requests — and since litigation among technology companies was the exception and not the norm at that time — I started to ignore the email. Nonetheless, Novell’s concerns were well-founded, because email frequently lies at the intersection of IT and litigation.
Whenever a lawsuit is in the offing — from patent litigation to prosecuting a sexual harassment suit — email is the best source of a “smoking gun,” or evidence that almost ensures a victory or lucrative settlement for one side. After all, email is very informal: email is worded much differently than a printed letter, and things are often said in email that might never be said in a face-to-face conversation. Moreover, most employees think of email as ephemeral, like so much water-cooler conversation. But it isn’t ephemeral: copies of an email message may stay around for a long time, whether on a backup tape, on a server, or on a workstation (in an inbox, in the recycle bin, or on a hard disk, accessible via data forensics tools).
Employers generally have a right in the United States to monitor all email traffic and the communication of all employees. This right is conditioned on the employee…
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