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Don't Delete That!
WHY YOUR COMPANY SHOULD HAVE DOCUMENT RETENTION, E-MAIL, AND INTERNET USE POLICIES
By Dan Block
Recent changes in the Federal Rules of Civil Procedure make it important that all businesses create and follow a document retention policy for both paper and electronic documents. Recent court decisions also make clear the advantage of having published guidelines for e-mail and Internet use at work by employees.
How important can this be to your company? In a landmark decision, a New York federal court recently sanctioned a brokerage for not preserving e-mail backup tapes in an employment discrimination lawsuit filed by a former trader. The court granted the former employee an "adverse inference," meaning that jurors were told to assume that e-mails deleted by the company would have negatively impacted its case. The jury found the company had discriminated against the employee, and awarded the employee just over $29 million.
In short, under the federal rules, representatives of businesses are now required to discuss document retention, including electronic documents, with plaintiffs in litigation within 90 days of the appearance of a defendant, or 120 days after a lawsuit has been served. At the initial meeting, the federal rules say the parties must disclose to each other "all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses." Electronically stored information includes all information stored in computers, including word-processing documents, e-mail, photographs, and spreadsheets.
As a result of these rules, your company should have a document retention policy with a litigation suspension plan.
A document retention policy should clearly apply to both physical and electronic documents. It should limit how long information is kept, and set forth procedures for destruction of both paper and electronic documents. It should also inform employees that when faced with the prospect of litigation, they must take care and not destroy documents that may be relevant to the claim.
Employee e-mail and Internet policies may help your company avoid liability for illegal discrimination. Lawsuits have been filed because of inappropriate jokes, comments, and pictures transmitted in e-mails to employees. Companies can be held liable for damages if they fail to prohibit this activity, and other noxious behavior, such as employees viewing pornographic images online; or if they fail to stop the improper behavior and take other appropriate action promptly after management becomes aware of the activity. A good e-mail and Internet policy will tell employees what the business considers to be appropriate use of the e-mail and the Internet; and what is inappropriate. The policy should also state that company officials might, at any time, read employee e-mail and/or monitor employee Internet usage.
I can prepare new, and review existing, document retention, e-mail, and Internet policies (and other employment policies and the employee handbook) for your business. You can contact me at 303-297-2600 or at dblock@rwolaw.com.
