A Basic Definition to Guide the Discussion: E-communications that meet the definition of records must be retained according to a schedule and must be accessible in the case of a FOIA request and conversely deleted according to that same schedule. Two Thoughts:
Responsibilities and Roles: Who is Responsible for Retention?
Employee Decide which messages to keep and which to destroy Empty e-mail trash bins to purge deleted messages frequently File the messages that are retained in an organized filing system* Identify which retention schedule mandates the message’s retention or authorizes its destruction *MHAL: File Plan Template Management Ensure that Retention and Disposal Schedules are accurate and comprehensive Adopt and distribute an e-mail retention and training plan for staff Adopt and distribute an acceptable use/etiquette policy Communicate with relevant employees, attorneys and information technology staff when a FOIA request is received or when litigation appears to be imminent Attorney Zubulake v UBS Warburg (2004) Counsel must actively oversee and direct the discovery and preservation process—merely issuing an order or memo is not enough. Counsel must meet with key players in the litigation to ensure they understand their role and duties. Counsel must take steps to protect relevant records. Counsel must be familiar with the client’s document retention policies. “The litigation hold instructions must be reiterated regularly and compliance must be monitored.” Information Technology Define backup processes in writing Purge backup tapes on a regular basis to ensure that deleted e-mail messages cannot be recovered Organize and index backup tapes so requested information can be located Work with attorneys to protect e-mail messages that are needed as evidence Note: It may be challenging to fulfill these responsibilities if the local government contracts with an e-mail service provider (such as Yahoo, MSN, etc.) |