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ARMA OMAHA CHAPTER Spring Seminar Omaha, Nebraska April 17, 2007 RUNNING SCARED: Keeping Your E-mail Policy Ahead Of The Law William F. Savarino COHEN MOHR LLP – PowerPoint PPT presentation

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Title: bsavarino@cohenmohr.com


1
ARMA OMAHA CHAPTER Spring Seminar Omaha,
Nebraska April 17, 2007
RUNNING SCARED Keeping Your E-mail Policy
Ahead Of The Law
  • William F. Savarino
  • COHEN MOHR LLP
  • Washington, D.C.
  • (202) 342-2550
  • bsavarino_at_cohenmohr.com

2
E-mail is like coming home at night after a
long day and finding 70 people in your
kitchen.
  • John ODonohue
  • Irish poet

3
Special Problems Associated With Increased E-mail
Usage
  • Communications not private
  • Loss of control over distribution
  • Source of company liability fraud, defamation,
    harassment, etc.
  • Privacy issues
  • High cost of electronic discovery
  • Treated too informally by most users

3
4
And if you dont think that it can happen to YOU
5
Dr. Alise Reicin, a Merck scientist, warning of
possible cardio-vascular concerns over Vioxx in
1997 e-mail. Verdict 254 million
The possibility of increased C.V. events is of
great concern.
6
Key provisions of Frank Quattrone e-mail which
led to his conviction for obstruction of justice
on September 8, 2004
We strongly suggest that before you leave for
the holidays, you should catch up on file
cleaning.
7
Mr. Rove told me that the wife of former
diplomat Joseph Wilson apparently works at the
agency on wmd.
2003 e-mail from Time magazine reporter Matthew
Cooper to editor regarding key confidential
source in story implicating White House Deputy
Chief of Staff in potential criminal disclosure
of CIA operative
8
I completely overlooked an important recent
decisionthere is a 1M risk of malparactice.
Georgia lawyer 2005 e-mail to his partners
inadvertently placed in clients file
9
I think the thing to remember with all these
clients is that they are annoying, but that the
annoying losers are the only ones which have this
kind of money and part with it so quickly.
  • E-mail from Jack Abramoff to Michael Scanlon
    cited during Senate Indian Affairs Committee
    hearing during which lawmakers charged that
    Abramoff and Scanlon corruptly influenced Indian
    tribal elections in order to bilk tribes that
    operate casinos out of more than 66 million in
    fees.

10
how is my favorite young stud doing
  • Instant message from with Rep. Foley in 2003
    released in 2006

11
I would buy a Mac today if I was not working at
Microsoft.
  • January 2004 E-mail from Senior Microsoft
    Leadership Team to Bill Gates discovered and used
    in Antitrust litigation in 2006 l

12
At present we have no knowledge that he did
anything other than join the Taliban.
  • Internal Justice Department e-mail discussing
    strength of Governments case against John Walker
    Lindh.
  • Lindh was originally charged with 10 counts
    including conspiracy to murder he pled guilty to
    lesser charges of serving in the Taliban and
    carrying weapons.

13
Is anybody out there listening?
  • Of 2,200 records managers surveyed.
  • 47 e-mail not in company retention plan
  • 59 no formal e-mail retention policy
  • 46 no system for suspending
  • destruction of e-mail in face
    of
  • pending litigation or
    investigation
  • 65 Litigation Hold policy does not
  • include e-mail
  • 71 IT oversees retention of records

14
Subpoenas for e-mail and IMs are on the rise
  • Of 840 U.S. BUSINESSES SURVEYED.
  • 21 e-mail IMs subpoenaed in
    litigation/investigation
  • 13 lawsuits triggered by e-mail
  • 35 employees use IM at work
  • 6 retain and archive business IMs
  • 31 have written IM policy in place

15
Legal/InvestigatoryActions Are Trending Up
  • 75 percent of global companies will be involved
    in a legal or regulatory action that requires a
    systematic approach to legal discovery in the
    next year.
  • Through 2010, companies without formal
    e-discovery processes will spend nearly twice as
    much on gathering and producing documents as they
    will on legal services. during discovery or
    face costly and time-consuming repercussions

16
Legal Standard for E-mail Retention
  • The regular policy-based destruction of e-mail
    messages is a legal and appropriate business
    practice if no law or other obligation requires
    retention.

17
E-mail Management Program Practical and Legal
Goals
  • Broadly stated e-mail policies are not helpful.

18
Federal Records
  • National Archives and Records Administration
    (NARA) E-mail Rules
  • Group related records by business purpose
  • Permit retrieval of individual records and groups
    of related records
  • Retain records in usable form for NARA-approved
    record schedule
  • Accessible for those with business need
  • Preserve transmission and receipt data
  • Permit transfer to NARA

19
Blanket Retention Policies Unsafe Harbors
  • We save everything until our mail server gets
    full then we delete everything and start anew.
  • We save everything for 30 (60 or 90) days and
    weve never had a problem.
  • We gave up trying to figure out individual
    retention rules and now keep everything for 10
    (15 or 20) years.

20
E-mail Retention Overview A Retention Policy Is
No Longer An Option
  • Why a 30-, 60, 90- day retention /
    destruction policy wont suffice
  • Government Industry Regulatory Requirements
    Enforcement Actions
  • Criminal Liability Sarbanes-Oxley
  • Litigation Obligations

21
E-mail Retention Overview Keys to a Good E-mail
Management Policy
  • Organize e-mail for easy retrieval
  • Destroy what can be destroyed permanently
  • Limit e-mails saved in employee folders
  • Consistent and reliable application

1
2
3
4
22
E-mail Retention Overview Keys to a Good E-mail
Management Policy
  • Comply with legal retention requirements
  • Preserve evidence
  • Preserve business records needed to manage
    projects and protect corporate interests
  • Protect trade secrets and confidential
    information
  • Prevent prohibited transmissions
  • Block offensive content

5
6
7
8
9
10
23
Comprehensive E-mail Management Program - Legal
Goals What Rules Apply?
  • Federal and state laws and regulations
  • Government contracts
  • Employment law
  • Securities law
  • Tax law
  • Other industry-specific requirements
  • Requirements are media neutral
  • Follow transition from paper to e-mail
  • Destruction may result in fines or indictments
  • Seek professional help

23
24
Applying the Rules
  • Record retention rules apply horizontally as well
    as vertically
  • A single e-mail can be subject to multiple rules
    from multiple bodies of law
  • Retention period for an e-mail can change based
    on subsequent events

24
25
Applying the Rules Sample E-mail
25
26
Applying the Rules Sample E-mail
  • Retention Rules That Apply To Sample
  • E-mail (Partial List)
  • 1 year period from personnel action for
    personnel records (ADEA)
  • 2 year period from generation (Government
    contract employment records)
  • 3 year period from contract payment (Government
    contract records retention rule)
  • 6 year Government contract statute of limitations

26
27
Applying the Rules Sample E-mail
Subsequent Events Can Change the Retention Period
  • Dept. of State Inspector General subpoenas
    contract records.
  • Contractor files claim to recover unreimbursed
    contract costs.
  • Mary Smith sues for wrongful discharge.

27
28
Employment Records Employment-Related Federal
Statutes
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act
Americans with Disabilities Act
Family and Medical Leave Act
Equal Pay Act of 1963
Vocational Rehabilitation Act
Employee Retirement Income Security
Act of 1974
National Labor Relations Act
  • Fair Labor Standards Act

28
29
Employment Records Employee Recruitment
Retention Period
Records
1 year from personnel action
Job advertisements and notices to the public or
employees regarding employment
1 year from personnel action
Job orders submitted by employer to employment
agencies or labor organizations for employee
recruitment
2 years or period of apprenticeship, whichever
longer
Criteria for selection for apprenticeship
programs list of applicants and hiring decision
and application paperwork
1 year from personnel action
Hiring documents including job applications,
resumes, job inquiries, and records of refusals
to hire
Documents relating to promotion, demotion,
transfer, selection for training, layoff, recall,
or discharge
1 year from personnel action
1 year from date records made or personnel action
taken, whichever later
All personnel or employment records including
application forms, resumes, other hiring records
records relating to promotion, demotion,
transfer, layoff, discharge, pay rates, or other
terms of compensation
Written training agreements, summaries of
applicant qualifications, job criteria, interview
records, and identification of minority and
female applicants
Duration of training plus 3 years
29
30
Government Contracts Retention Periods
  • Right to access records 3 years after the final
    contract payment unless a shorter retention
    period in FAR subpart 4.7 applies.

30
31
Government ContractsFAR Subpart 4.7 Financial
Cost Accounting Records
Records
Retention Period
31
32
Government Contracts Special Retention Rules
Disputes duration of the claim or appeal
Termination 3 years after final settlement
GSA Schedule 6 year limitations period
32
33
(No Transcript)
34
Retention Plan Tips
  • Step 1 Inventory all electronic devices in the
    organization. This inventory must include
    peripherals, such as laptops, Blackberries, cell
    phones, PDAs, voicemails, home computers, that
    either belong to the organization, or are
    connected remotely to the organizations servers.
  • Step 2 Develop a diagram (schematic) of all
    inventoried devices and how they are connected
    (networked). This also includes how devices, and
    the entire organizations network, are backed up
    for disaster recovery.
  • Step 3 Inventory all software programs used,
    including manufacturer, program name and version
    number. Software programs include operating
    systems, applications, tools and utilities.

35
Retention Plan Tips.
  • Step 4 Prepare an explanation of how the
    organizations database works, and what kinds of
    reporting capabilities it has. This would include
    any document management systems, and how those
    systems are organized (by what variables are
    documents stored and retrieved).
  • Step 5 Clearly identify what applications (e.g.,
    emails, disaster recovery tapes) automatically
    delete and/or overwrite themselves, and by what
    criteria they are deleted or overwritten (e.g.,
    by dates, or oldest emails, or size of email).
  • Step 6 Clearly state how the organizations
    database identifies and protects (a) trade
    secrets and confidential and proprietary
    information, and (b) attorney-client privileged
    communications.

36
Recent Legal Developments
  • Costs Cost Shifting
  • Fines, Penalties Sanctions
  • Inadvertent Disclosures

37
Recent Developments COSTS COST SHIFTING
  • Zubulakes 7 Cost-Shifting Factors
  • Extent to which request is tailored to discover
    relevant information
  • Availability of information from other sources
  • Cost of production compared to amount in
    controversy
  • Cost of production compared to each partys
    resources

38
Recent Developments COSTS COST SHIFTING
  • Zubulake Cost-Shifting Factors, contd
  • Relative ability of each party to control costs
    and incentive to do so
  • Importance of issues at stake and
  • Relative benefits to parties of obtaining
    information.

39
Recent Developments COSTS COST SHIFTING
  • Peskoff v. Faber, (D.D.C. Feb. 21, 2007)
  • Defendant must conduct comprehensive search of
    all depositories of electronically stored
    information at its own expense.
  • Cost shifting does not become a possibility until
    showing of inaccessibility (new FRCP 26)

40
Recent Developments COSTS COST SHIFTING
  • AAB Joint Venture v. United States, (Fed. Cl.
    2007)
  • - Cant use technology as a shield in
    litigation
  • Phased production of back-up tapes

41
Lessons Learned about Costs and Cost Shifting
42
LESSON 1
  • Courts continue to struggle with apportioning
    the substantial costs of e-discovery.
  • Producing Party typically pays the cost of
    production.
  • Uncertainty under FRCP Amendments

43
LESSON 2
  • It is not enough to just have an e-mail
    retention policy you may negatively impact your
    ability to shift the costs of e-discovery if you
    do not have the ability to organize and
    efficiently retrieve e-mail.

Get Organized!
44
LESSON 3
  • Even if you convince the court to apportion
    e-discovery costs, you are still likely to be
    responsible for the costs of reviewing e-mail for
    responsiveness, privilege, and confidentiality
    a good retention / destruction policy and proper
    organization will ease your financial burden.

45
Recent Developments Fines, Penalties, and
Sanctions
46
Landmines for the Unwary
  • Discovery Requests
  • Subpoenas
  • Investigations and Administrative Actions

47
Obligation to Preserve Evidence
  • Courts can impose sanctions for the intentional
    or unintentional destruction of evidence during
    or even precedinglitigation
  • Destruction of evidence is a crime during a
    criminal or civil investigation or when an
    investigation or administrative action is
    contemplated
  • Quick action to safeguard electronic data
    required when dispute arises
  • Notice is the key keeping an ear to the ground

47
48
Deleted E-mail is Evidence
  • All e-mail correspondence, including deleted
    e-mails, sent or received by research and
    investment-banking employees who worked in the
    technology, media, telecommunications,
    biotechnology, and industrial sectors at the
    firms from
  • July 1, 1999 to June 30, 2001.

49
Recent Developments Fines, Penalties Sanctions
  • Regulatory Penalties
  • Fines
  • Adverse Regulatory Actions (cease and desist
    orders, etc.)
  • Banc of America Securities LLC Censure and 10
    million penalty
  • Obstruction of Justice
  • State Federal
  • Fines and Imprisonment
  • Frank Quattrone - 18 month prison sentence,
    90,000 fine, and two years probation

50
Recent Developments Fines, Penalties Sanctions
  • Court Sanctions
  • Fines
  • Adverse inference instructions
  • Exclusion of witnesses
  • Limits on use of evidence
  • Attorneys Fees
  • Judgment against non-producing party

51
Recent Developments Fines, Penalties Sanctions
  • Coleman (Parent) Holdings, Inc. v. Morgan Stanley
    Co., Inc. (Florida Circuit Court, Fifteenth
    Judicial Circuit, Palm Beach, No. 03-5045, March
    23, 2005)
  • Motion for adverse inference granted.
  • Default Judgment granted.
  • Not enough to retain e-mails organization and
    retrieval also required.

52
Recent Developments Fines, Penalties Sanctions
  • Rambus, Inc. v. Infineon Techs. AG (E.D. Va.
    2004)
  • Shred Day
  • Plaintiff required to produce information
    relating to creation, preparation, and scope of
    its document retention policy

53
Recent Developments Fines, Penalties Sanctions
  • United States v. Phillip Morris USA Inc. (D.D.C.
    2004)
  • Witnesses excluded from trial
  • 2.9 million monetary sanction assessed

54
Recent Developments Fines, Penalties Sanctions
  • Metropolitan Opera Assoc., Inc. v. Local 100
    (S.D.N.Y. 2003)
  • Defendants found liable
  • Ordered to pay attorneys fees

55
Recent Developments Fines, Penalties Sanctions
  • Thompson v. United States (D. Md. 2003)
  • Defendant precluded from using late-produced
    e-mails at trial
  • Ordered to pay attorneys fees associated with
    plaintiffs review of late-produced e-mails

56
Recent Developments Fines, Penalties Sanctions
  • Zubulake v. UBS Warburg, LLC (S.D.N.Y. 2003)
    (Zubulake IV)
  • Parameters of "litigation hold" to ensure the
    preservation of relevant documents
  • Backup tapes (accessible and inaccessible)
  • Documents of key players

57
Recent Developments Fines, Penalties Sanctions
  • In re NTL, Inc. Securities Litigation, (S.D.N.Y.
    January 30, 2007)
  • -Adverse inference spoilation jury instruction
    granted where successor company failed to
    preserve evidence.

58
Recent Developments Fines, Penalties Sanctions
  • Treppel v. Biovail Corp., (S.D.N.Y. 2006)
  • Quinby v. WestLB AG, (S.D.N.Y. 2006)
  • - A responding party is entitled to shift part
    of the costs of restoring and searching emails
    that were converted into inaccessible format
    after the duty to preserve has arisen.
  • -Conduct that hinders access to relevant
    information is sanctionable, even if it does not
    result in the loss or destruction of evidence.

59
Recent Developments Fines, Penalties Sanctions
  • Static Control Components, Inc. v. Lexmark Int'l,
    inc., (E.D. Ky., 2007)
  • - Producing more e-mail than was requested is
    not sanctionable

60
CRITICAL LESSONS LEARNED ABOUT AVOIDING FINES,
PENALTIES, AND SANCTIONS
61
LESSON 1
  • The retention/destruction policy should be
  • Widely disseminated on a regular basis
  • Consistently applied throughout the organization
  • Regularly updated and
  • Regularly reviewed by knowledgeable in-house
    counsel.

62
LESSON 2
  • E-mail retention should be a centralized function
    employees should be forbidden from storing
    e-mails on their hard drives or other independent
    storage media.
  • Employers should randomly check employee
    computers on a frequent basis.

63
LESSON 3
  • Your e-mail retention policy should be in place
    and implemented well in advance of any potential
    or actual litigation or investigation.
    Organization and retrieval should be stressed.

64
LESSON 4
  • Your e-mail retention policy should contain
    processes and procedures for promptly informing
    the appropriate record manager or IT
    administrator of all pending, threatened, and
    potential litigation affecting the company.

65
LESSON 5
  • You should appoint a person at the corporate
    executive/ management level responsible for
    gathering information relating to all pending,
    threatened, and potential litigation affecting
    the company.

66
LESSON 6
  • The appointed person should be directed to seek
    guidance from in-house or outside counsel
    regarding whether Litigation Hold obligation is
    triggered and, if so, should be required to
    promptly advise the appropriate record manager
    and/or IT administrator.

67
LESSON 7
  • You should educate all employees
  • (i) of the need for the company to react to
    notice of all threatened
    or potential litigation affecting the company
  • (ii) That notice can be written or oral
    notice to employees at any level constitutes
    notice to the company
  • (iii) all employees are to promptly report any
    threatened or potential litigation affecting the
    company (whether written or oral) to the
    responsible designated corporate
    executive/manager.

68
LESSON 8
  • Employees should be regularly reminded of their
    responsibilities.

69
LESSON 9
  • Require the appropriate record manager and/or IT
    administrator, upon receiving notice, to
    immediately suspend all further deletion of
    e-mail until all potentially pertinent e-mails
    can be found, organized, isolated, and saved.
  • This will likely require coordination with
    appropriate company personnel to identify
    appropriate e-mail search criteria relating to
    subject matter, dates, and participants, etc.

70
LESSON 10
  • The record manager and/or IT administrator should
    be supervised by in-house or outside counsel to
    ensure prompt, complete, and
  • effective compliance with the
  • Litigation Hold directive.

71
Before Litigation Hold Occurs
  • Step 1 Select team members, including legal
    department members outside counsel paralegal or
    project manager records management person
    senior management and IT department member.
    Consider adding third party forensic experts.
  • Step 2 Assign team members responsible for
    culling, filtering and de-duplicating data, which
    will then be processed in a common format.
  • Step 3 Review processed data, which includes
    identifying, indexing, excluding data that is
    confidential and privileged, and analyzing.
  • Step 4 Finally, the team must tightly supervise
    the production of data and post-production
    management of data.

72
After Litigation Hold Effected
  • Step 1 Immediately identify and notify key
    employees of the hold. Do not allow employees to
    review or collect the information themselves.
    Know where the data that needs to be preserved is
    located.
  • Step 2 Independently verify the completeness
    and accuracy of employee statements
  • Step 3 Collect the required electronic
    information without changing or destroying any
    data.
  • Step 4 Document how the electronic information
    was collected, stored and accessed so it creates
    a proper chain of custody. Each person involved
    in the identification and collection needs to
    describe how the electronic information was
    located and collected.

73
FRCP Amendments
  • Plasse v. Tyco Elec. Corp, (D.Mass. 2006)
  • - inartful attempt to change the dates on
    documents on his home computer
  • - Recovery of fees incurred for expert to
    discover the fraud

74
FRCP Amendments
  • Rule 26(b)(2)
  • No requirement to provide electronically stored
    information that is not reasonably accessible.

75
FRCP Amendments
  • Rule 37. Failure to Make Disclosures or Cooperate
    in Discovery Sanctions   (f)
    Electronically Stored Information. Absent
    exceptional circumstances, a court may not impose
    sanctions under these rules on a party for
    failing to provide electronically stored
    information lost as a result of the routine,
    good-faith operation of an electronic information
    system.

76
FRCP Amendments
  • The routine, good faith operation of an
    electronic records storage system can be proven
    by reference to a companys written records
    retention policy. 
  • This assumes, however, that a) the company has
    such a manual and, b) the book is routinely
    followed. 
  • If a litigation hold was not implemented when it
    should have, then the practice lacks the good
    faith needed for the safe harbor, even if it has
    the routine.

77
FRCP Amendments
  • Rule 34(b)(ii)
  • Produce electronic data in a form in which it is
    ordinarily maintained or in a form that is
    reasonably usable

78
FRCP Amendments
  • DE Techs, Inc. v. Dell, Inc., (W.D. Va., 2007)
  • -Requirement that the electronic documents be
    produced as they are maintained in the ordinary
    course of business does not necessarily require
    that documents be produced in an identical format
  • -Providing access to a searchable database
    meets requirement even though the produced
    documents did not have a live electronic
    directory.

79
FRCP Amendments
  • Williams v. Sprint/United Management Company,
    (D.Kan. 2006)
  • Play it as it lies. 
  • Native format now the default mode of production
    absent agreement by the parties. Careful of MSG
    formats.

Judge Lungstrum is inclined
80
Recent Developments Inadvertent Disclosures
  • An effective e-mail retention policy guards
    against costly inadvertent disclosures.
  • - Attorney-Client Privilege
  • - Trade Secrets

81
Recent Developments Attorney-Client Privilege
  • In re Lernout Hauspie Sec. Litig., (D. Mass.
    2004)
  • Privilege waived as to inadvertently disclosed
    e-mail that revealed anonymous phone call
    implicating misconduct by accounting firms
    client. Privilege as to all related e-mails
    waived as well.

82
Recent Developments Attorney-Client Privilege
  • Pierce v. Girl Scout of Greater New York, Inc.,
    (S.D.N.Y. 2007)
  • -a reasonable degree of care needed to prevent
    inadvertent disclosure of privileged
    communications
  • - need to act promptly to rectify the error in
    making the disclosure when it learned of the
    error.

83
Recent Developments Attorney-Client Privilege
  • Murphy Oil USA v. Fluor Daniel (E.D. La. 2002)
  • Two copies of inadvertently disclosed e-mail
    existed on defendants backup tapes -- one was
    attached to message from system administrator
    stating attached e-mail was undeliverable due to
    error in e-mail address and copy of same e-mail
    was sent to correct address.

84
Recent Developments Attorney-Client Privilege
  • National Econ. Research Assocs., Inc. v. Evans,
    (Mass. Super. Ct., 2006)
  • - Employees use of private, password protected
    e-mail account with Yahoo accessed through the
    internet
  • - Temporary files on hard drive of companys
    computer (screen shots) confidential
  • -No waiver of privilege
  • - Expressly reserve the right to retrieve those
    temporary files and read them

85
Recent Developments Trade Secrets
  • Trade secrets and other proprietary and
    confidential information also may be
    unintentionally disclosed through produced e-mail.

86
6 Lessons Learned about Inadvertent Disclosures
87
LESSON 1
  • Your e-mail policy should detect and separately
    store all potentially privileged communications
    and all communications containing trade secrets
    or other proprietary information.

88
LESSON 2
Don't e-mail it!
  • Use of e-mail to communicate privileged,
    confidential, proprietary, and trade secret
    information should be discouraged.

89
LESSON 3
  • If the company insists on using e-mail for such
    communications, these e-mail should be clearly
    identified as containing privileged and/or
    proprietary information.

90
LESSON 4
  • You should know where your privileged and
    proprietary e-mails (including all copies) are
    stored at all times.

91
LESSON 5
  • You should advise employees on a frequent basis
    that privilege can be waived through the
    disclosure of subsequent e-mails describing
    privileged communications.

92
LESSON 6
  • Your retention policy should include measures to
    safeguard proprietary and confidential
    information and trade secrets.

Protect Secrets
93
Independent Tort of Spoliation
  • A growing number of states recognize spoliation
    of evidence as a legally actionable event for
    which a party can recover damages

94
Independent Tort of Spoliation
  • Elements
  • Pending or probable civil litigation
  • Spoliators knowledge that litigation is pending
    or probable
  • Willful destruction of evidence
  • Intent to interfere with victims civil suit
  • Causal relationship between evidence destruction
    and inability to prove lawsuit
  • Damages

95
Instant Messaging Not just for kids anymore
  • In 2004, 90 of enterprises are
  • using IM to some extent.
  • 31 employees use IM at work.

96
Instant Messaging Not just for kids anymore
  • IM is subject to many of the same types of
    document retention rules applicable to documents
    and e-mail messages.

97
Instant Messaging
  • U.S. Securities Exchange Commission Rules/NASD
    Notice to Members (2003)
  • Sarbanes-Oxley Act
  • Gramm-Leach-Bliley Act
  • HIPAA
  • State law

98
Instant Messaging
  • IM communications may
  • be used as evidence.
  • Organizations without the capabilities to
    monitor, retain, store, and retrieve IM
    communications should forbid IM use.

99
G-Mail The Future?
  • Googles e-mail system
  • Privacy concerns
  • Immortality

100
Personal Liability
  • When the person who has responsibility for
    deleting/retaining e-mail is YOU . . .

101
Personal Liability
  • Criminal liability for obstruction of justice
  • Whoever knowingly alters, destroys, mutilates,
    conceals, covers up, falsifies, or makes a false
    entry in any record, document, or tangible object
    with the intent to impede, obstruct, or influence
    the investigation or proper administration of any
    matter within the jurisdiction of any department
    or agency of the United States or any case filed
    under title 11, or in relation to or
    contemplation of any such matter or case, shall
    be fined under this title, imprisoned not more
    than 20 years, or both. 18 U.S.C. 1519.
  • Tort liability for spoliation of evidence

102
Personal Liability
  • Arthur Andersen v. United States, 544 U.S. 696
    (2005). 
  • A knowingly corrupt persuader cannot be
    someone who persuades others to shred documents
    under a document retention policy when he does
    not have in contemplation any particular official
    proceeding in which those documents might be
    material.

103
Personal Liability
  • Potential adverse actions by company against
    individual (the scapegoat issue)
  • Pass-through of fines
  • and penalties
  • Suspension, termination, and
  • other adverse employment actions

104
Tips for avoiding personal liability
  • Have the company spell out what you are required
    to do and how to do it. Insist that your company
    adopt an effective e-document retention/destructio
    n policy that comports with the law.
  • Have someone else make the tough calls.
  • When in doubt, dont throw it out.
  • Document everything.
  • Know the name of a good lawyer.

105
The Need for Legal Expertise
  • E-mail retention has legal ramifications.
  • Lawyers are in a better position to ascertain the
    applicable rules and regulations governing
  • retention requirements.
  • Lawyers are in a better position to
  • assess the ever-evolving law relating
  • to Litigation Hold requirements.
  • Confidentiality

106
The Need for Legal Expertise
  • Every e-mail retention policy should be submitted
    for a legal compliance review annually (this is
    risk management dont be penny-wise and pound
    foolish).

107
The Need for Legal Expertise
  • Proper communication between a party and her
    lawyer will ensure (1) that all sources of
    relevant information is discovered, (2) that
    relevant information is retained on a continuing
    basis and (3) that relevant non-privileged
    material is produced to the opposing party. 

108
Disclaimer
  • This presentation provides a general overview of
    some of the legal issues relating to electronic
    mail and applicable record retention
    requirements. It is not intended to be an
    exhaustive discussion of all record retention
    requirements nor is it intended to constitute
    legal advice.
  • The information presented is based on statutes
    and regulations in effect at the time the
    presentation was developed. The information may
    be changed or affected by recent developments.
  • If you have specific questions regarding the use
    and management of e-mail and/or record retention
    requirements, please consult your legal advisor.

109
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