Toll Free: 877.880.

4477
Phone: 281.880.6525

Help Avoid
Legal Hot
Water with
a Strict
Email Policy
www.hrp.net

According to the ePolicy Institute, 90% of business documents produced and

acquired by companies are electronic. "Many employers find themselves
drowning in email-related risks as they struggle to manage the use and
curtail the abuse of what was originally conceived as a time-saving,
productivity-enhancing technology tool," according to a report by that
organization and Symantec.

The basic risk is that emails will be destroyed to hide potentially incriminating
evidence in a legal proceeding. The consequences can be devastating for the
company, both in terms of legal penalties and the resulting bad publicity.
When potentially important evidence (contained in emails) is destroyed,
courts have been known to automatically rule in favor of the plaintiff,
reasoning that deleted emails would have provided enough evidence to
support the plaintiff's case. And if the case is particularly egregious, an
employee involved in deleting emails can personally pay a heavy financial toll.

www.hrp.net

Double-Deleting
That's what happened in a recent case in which a company executive, after
the company was put on notice that it would be getting sued (known as a
"litigation hold"), "double-deleted" thousands of emails. They were deleted
from the executive's in-box, then from the electronic "trash." The executive,
the senior vice president of sales, was personally fined $1 million.
He made matters worse for himself by encouraging other employees to delete
emails related to the litigation. Then he lied about his own email-deleting
activities.

www.hrp.net

Business Records
Managing email risk requires understanding two basic principles of record
retention (electronic or otherwise). First, what kinds of records do you need to
hang onto for a while even without the threat of litigation?

www.hrp.net

Specifically, determine which emails could be deemed a "business record."

According to the ePolicy Institute report, a business record is one that
"provides evidence of a company's business-related activities, events, and
transactions." They should be kept "according to their on-going business,
legal, compliance, operational, and historic value to the company.
Email exchanges among employees about where to have lunch likely wouldn't
fall under that heading. But anything related to policies, procedures or
production probably would.
Also keep in mind that archived emails might come to your rescue if you're
involved in unexpected litigation. These retained records could either establish
your innocence if you've been falsely accused of wrongdoing, or they could
support a case you might bring against another party.

www.hrp.net

Litigation Hold
The second basic principle involves the "litigation hold." This is when a written
notice is received that instructs parties with custody of documents to preserve
potentially relevant evidence in anticipation of future litigation.

www.hrp.net

When the notice arrives, purging of documents is forbidden including

overwriting backup electronic storage systems. Doing so may be deemed as
"virtual shredding" of evidence.
Employees might wrongly assume that a simple email doesn't amount to a
significant document that needs to be preserved. It's therefore critical to
establish a clear email retention policy and convey it to employees not just
once, but on a periodic basis. And everyone in the organization needs to be
aware of the policy; managers, such as the sales exec mentioned above, can't
be left off the list.

The policy should define "business record," and set a schedule for when
emails can be deleted. Standards for public companies, and those in certain
industries (including privately held ones), are subject to specific record
retention rules.

www.hrp.net

Electronically Stored Information

Under federal court guidelines, emails are just one component of
"electronically stored information" (ESI) subject to retention requirements,
such as under a litigation hold. ESI also includes email attachments, along with
any other kind of data that can be stored in company computers.
So, your email retention strategy should also address ways you can prevent
employees from deleting them. For example, you can give your IT department
the prerogative to block an employee's efforts to trash emails that he or she
has already deleted.
Or the policy can ensure that there's a backup system in place beyond the
reach of an employee's efforts to destroy potential evidence. Technology
vendors can serve as a valuable resource with regard to building systems that
can prevent even the most determined "email deleters" from accomplishing
their objectives.

www.hrp.net

Your Own Hands

As with many areas of business litigation, courts will weigh not only whether
you have a policy with regard to potentially problematic employee behavior,
but also how well you communicate it and how consistently you uphold it. So
the power to prevent email-related missteps lies largely in your own hands.

www.hrp.net

14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA

Toll Free : 877.880.4477
Phone : 281.880.6525
Fax
: 281.866.9426

E-mail : info@hrp.net

www.hrp.net