Email lives forever. And deleting doesn't work.

It seems that everyone is talking about deleted, or not deleted, email these days. Email is far more permanent than many people think. It’s easy to write something in an email that you later regret. Email has become an electronic method of chatting around the water cooler. The only difference is that around this water cooler, someone is writing down every word you’re saying. In addition, the casually written email or off-hand joke is easily and frequently misinterpreted.

Email is discoverable. In a lawsuit, “discoverable” means anything that your opponent can force you to turn over. Many people are under the mistaken impression that email is not discoverable. It is. There is no simpler way to put it. If you are sued, and the other side can show that your emails are likely to contain information relevant to the case, the judge will order you to turn over your emails. Failure to do so can lead to serious consequences. In a case between Qualcomm, Inc. and Broadcom Corp., Qualcomm failed to turn over more than 300,000 pages of emails. This fact wasn’t discovered until after the trail had concluded. The in-house attorney for Qualcomm resigned as a result, and their 19 attorneys were called before the court to explain themselves. Qualcomm said it was a simple mistake, but the judge didn’t care. He ordered a new trial.

Even if you are an IT whiz that knows how to "really" delete emails, you shouldn't. I’ve had clients tell me many times, “ I don’t need to worry about that because I delete all of my emails.” This could actually get you into even hotter water. A jury once ordered Morgan Stanley to pay $1.57 billion (with a "B"), mainly because it did such a bad job of storing and archiving its emails. Fortunately, this huge award was later overturned, but it highlights the importance of properly storing all archived data, including emails. In a similar situation, Intel Corp. at one point planned to spend more than $20 million on technology, consultants and technicians to recover emails it failed to protect from deletion in a high profile anti-trust lawsuit.

What should you do? First and foremost, be careful what you write in emails. Many sexual harassment or discrimination lawsuits have turned on inappropriate jokes passed around the office via email. In addition, email is a written record that could be construed as a contract depending on the content. As noted below, as much as 60% of business is now conducted via email. Thinking ahead and putting a plan into place is important. You should seriously consider working with a professional when putting together that plan. That could be a technology-savvy attorney, an IT firm, or both.

Phil Anuta of The Deerbrook Group, LLC works with companies attempting to get a handle on their email management, policy and storage. They recommend the following:

• One of the most important steps a company can take to improve the stress that might surround legal discovery or regulatory agency audit of the email system is to establish a Policy. Establishing a company policy sets boundaries for proper employee use of email and creates a mechanism for characterizing and defining the treatment and storage of email as prescribed by management.

• Once established, the policy should be required reading by company employees, and a signed document attesting that the employee read and understands the policy content should be maintained in the employee record. A policy by itself does not prevent legal discovery during a lawsuit, but its existence does reduce subjective arguments regarding employee activities versus documented company policy. Also, if the company is audited by a government agency, the ability to present the agency with a comprehensive company policy could translate to a smaller and less invasive audit.

The policy should contain the following components:

• Acceptable use – it should be stated that only business related content may be included on the company email system. Many times, the employee does not fully understand that the email system is a company asset, not theirs. Of course occasional personal use will occur, but it should minimal. The company should also practice automated sniffing of email content both inbound and outbound, especially for proprietary ‘key word’ triggers. Several vendors offer automated content audit services.

• Definitions - in today’s world, more than 60% (on-line reference) of company business is transacted via electronic mail. The company policy should establish and define what types of email represent a ‘document of record’, which creates a legal or binding transaction for the company and what types of documents represent business ‘planning and discussion’ content. The latter documents would not represent a record of commitment on behalf of the company but certainly could contain authorization for action to be taken on behalf of the company.

• Retention – bottom line, because all email content can be subject to ‘legal discovery’ the need to maintain solid historical email retention requires the company to establish a retention schedule that considers the defined types of e-mail as well as their data volume and storage capability. The company should also formally define the periodic assessment of the storage practice. It is also wise to perform annual restoration drill to make sure all supporting organizations know how to quickly retrieve the data if requested.

If you have any concerns about your current system of email storage, give me a call. We can put together the right protocols and guidelines that you can then take to your IT professional for implementation. To contact The Deerbrook Group directly, send Phil an email at panuta@thedeerbrookgroup.com.