Email Retention And eDiscovery Rules

Email (and other electronic) messages may be required as evidence in civil and criminal legal proceedings, unless they are protected by privilege (e.g. communications between a lawyer and his client). 

eDiscovery is the process of retrieving electronic data and records for evidence. As soon as legal proceedings are contemplated the organisation has a duty to the court to preserve every document relevant to the claim. This obligation includes (electronic) documents upon which the organisation may rely and any documents which may adversely affect their case.

Where one party fears the other may destroy documents relevant to the case, an application can be made to the presiding judge for an order that all electronic records, including email correspondence be preserved and copies be handed over to the other party.

Where documents are deliberately destroyed, proceedings can be taken for contempt of court.


Hard drive and back-ups


Even after an email has been deleted, the information may remain on the hard disk until it is over-written. Organisations should also back-up data copies. When an email is saved to a back-up tape (or other external media), the copy will remain even if the email is deleted from both the sender’s and recipient’s computers and the file server.


Record keeping and archiving policy


Vicarious Liability, email retentionAdopt an organisation-wide procedure for incorporating email into the existing record-keeping system and protecting emails from alteration (e.g. Where a contract is formed by the exchange of emails, copies of the emails should be kept for the same period as the organisation’s other contracts).

Introduce also an organisation-wide policy that all emails are either deleted, printed then deleted and/or archived electronically as necessary when dealt with by the person receiving or sending them.


Email software controls


The parameters in the software controlling emails should be set to ‘automatically delete emails in each employees recycle folder’, or equivalent, at a set time (e.g. at log off or at the end of the day); automatically archive emails that are more than a number of days old; set a maximum disk space size for each workers emails with a warning when the limit is approached.


Reference


See Electronic Communications

Updated 10th June 2013

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