Legal Update – Litigation Discovery and the Smoking Email; Establishing an Email Retention Policy

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To those readers fortunate enough to have never experienced protracted, no-holds-barred litigation and the drain of time, money and attention attendant thereto, “discover” is a critical step and perhaps more time-consuming, from the client’s perspective, than trial. Discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from no-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Civil discovery is a wed-ranging and can involve any material which is “reasonable calculated to lead to admissible evidence.” This is a much broader standard than relevance, because it contemplates the exploration of evidence which might be relevant, rather than evidence which is truly relevant.

Document requests in discovery are often repetitive, open-ended and ambiguous requests of prohibitively broad scope, such as: “Any and all communications to, regarding, or in any way relating to Defendant or the contact,” or “Any and all documents, receipts, or records reflecting any salary, compensation, bonus, gift, reimbursement, fringe benefit, loan or other funds paid or provided to you directly or indirectly by Plaintiff or by any other business, company, corporation, entity or venture.” Answering twenty-five of these requests can be a staggering undertaking, and can often invoke bask-and-forth legal motions to limit the scope of the request.

More and more of tour communication is in email. Email has many advantages and disadvantages which can create numerous questions in the discovery process. First, email can be stored indefinitely at little additional cost, meaning that when facing a document request for communications you may have years and years of email – had they been hardcopy correspondence you likely would have pitched them after some time. Additionally, it’s hard to be certain when an email is deleted if it is still recoverable. Is it backed up on your local hard drive? Your smart phone? Or on the network server? Does the other party to the email still have a copy? Lastly, although you may have years of email, sorting it and reproducing it in reviewable fashion can be difficult. Do you reproduce every email or just the last email in the chain? Do you have to print each out or is there a way to export just those emails rather than your whole mailbox? Electronic discovery has become a major battle group in discovery contests. Often such disputes over email or other computer files will require digital forensics analysis, a costly and invasive process.

Supposed you have just had a lawsuit filed against your company and you are aware that highly valuable emails for the plaintiff exist on your computer. First, knowing that eventually those emails will be subject to a discovery request, can you just delete them? No, this is “spoliation of evidence,” which is the intentional or negligent withholding, hiding, altering or destroying of evidence relevant to a legal proceeding. When a party destroys evidence, the law provides that it is then reasonable to infer that they party has “consciousness of guilt” or other motivation to avoid the evidence. This allows the finder of fact to review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party. Moreover, courts and legislatures, recognizing the ease and speed with which a party to a lawsuit could delete email and computer files, have begun instituting law concerning spoliation of evidence by making it, in and of itself , a crime and distinct legal cause of action in the civil context.

You cannot justifiably circumvent the “spoliation of evidence” inference and shield incrimination electronic files from discovery. Therefore, the answer may be to institute a company-wide email retention policy. The policy can be crafted to accomplish whatever objective you have. If your company is a volume business without lengthy projects and your objective is to limit stale email which will never be needed again, the policy may be as simple as “any email message older than six months will be automatically deleted.” Your objective cannot be to delete email in fear of litigation; however, a well-established, well-conceived policy will provide a reasonable explanation when reporting that electronic records have been deleted. Other companies may wish to retain all employee email. For instance, companies subject to common regulations such as Sarbanes-Oxley, FINRA and HIPAA are required to retain email and computer files for minimum periods. When instituting an email retention policy it is important to address the following: define a clear objective policy; the policy must be consistently applied at all times; do not rely on employees to proactively follow the policy and use technology to enforce the policy; educate employees about the policy; and most importantly, ensure that the policy can accommodate a legal hold.

As a corollary to the spoliation of evidence doctrine, when litigation is reasonably anticipated, a party is required to preserve all forms of relevant information, regardless of any pre-existing policy to the contrary. This process is called a “legal hold.” As you may imagine the interpretation of “reasonable anticipated” has been argued again and again. Recent amendments to the U.S. Federal Rules of Civil Procedure have expanded the scope of a legal hold to cover email and other computer files. Additionally, all future relevant email communication is also subject to the legal hold.

In general, to the extent your office is paperless, it is critical to put systems in place to address the administration, storage, availability and access of computer files from both a real-world and legal perspective. This cannot be an ad-hoc process, but a coherent comprehensive plan to meet your identified objectives.

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