Knowing how long to store your company email can be confusing. For some industries and public companies there are laws dictating how long emails should be kept, but for other companies it is more discretionary.
A document retention policy can help with this. Deciding which emails to keep and for how long — and then most importantly, sticking to your policy — will be looked on more favourably should you find yourself justifying missing email evidence to a judge.
If you're unsure if an email should be retained or if it can be deleted, it is always better to err on the side of caution. The Federal Rules of Civil Procedure (FRCP) dictate that if a company can reasonably anticipate legal action, then by law you must store these emails in case of a possible discovery request. Delete possible email evidence when legal action is a possibility and you risk accusations of spoliation and paying hefty fines and court costs. You can read more about spoliation in my previous blog: Spoliation will spoil your chances of winning your case.
Just what News International (the UK arm of US media giant NewsCorp) was thinking when it allegedly introduced an Email Deletion Policy after legal action was launched against its infamous British newspaper News of the World (which is now closed following phone hacking allegations) is anybody's guess.
News International (NI) has now settled out of court almost 60 lawsuits relating to phone hacking allegations. When you think it couldn't get any more controversial it does, with the release of British high court documents alleging a policy of deleting emails that would be 'unhelpful' to NI in future litigation.
The first civil lawsuit alleging phone hacking was brought against News of the World in 2007. The FRCP guidelines should have come into play at this time, as it was now reasonable to anticipate legal action. But rather than doing all they could protect possible email evidence, between 2009 and 2010 NI allegedly implemented an email deletion policy which would "… eliminate in a consistent manner across NI (subject to compliance with legal and regulatory requirements) emails that could be unhelpful in the context of future litigation in which an NI company is a defendant." Such a policy is in stark contrast with NewsCorp's legal requirements under the FRCP.
Court documents reveal hundreds of thousands of emails were deleted as well as the computers of journalists named in the original phone hacking lawsuit. Perhaps most damning is the discovery of a paper copy of a destroyed email sent by News of the World's final editor to now-resigned NI chairman James Murdoch in 2008. The email discusses the phone hacking allegations and includes correspondence with an in-house lawyer. The editor's copy was reportedly lost in a hardware failure in 2010 and Mr Murdoch's copy was deleted 10 months later in an 'email stabilisation and modernisation program'.
News International may have settled the phone hacking lawsuits out of court but British police continue to troll through millions of previously deleted emails which have since been recovered, searching for evidence.
Deleting email evidence will never do you any favours. The law will catch up with you. If you ever need a reminder, you need go no further than NewsCorp and the legal controversy they find themselves embroiled in.
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