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Email retention policies

ASSOCIATIONS NOW, August 2008 Intelligence

By: Tami R. Boehne, Esq.

Summary:

Q: We have a records retention policy, but it does not directly address email. Should we add specific provisions regarding email, and, if so, what factors should we consider?

A: It is very important to have an up-to-date records retention policy that also addresses email retention.

Discovery. Effective December 1, 2006, the Federal Rules of Civil Procedure were amended to provide that parties must meet and confer regarding discovery in the early stages of litigation. Under Rule 26, the parties must be able to identify which electronic records are accessible and which are not for purposes of responding to discovery requests. In the absence of an email retention policy, an association is likely to realize that it has accumulated thousands of unnecessary emails over a period of many years. Each additional email that should have been previously deleted adds to litigation costs because it must be reviewed by an attorney and a decision made whether to produce it or claim it is privileged.

Treat email records like other business records. Email records used for business purposes should be treated like other business records and should be subject to the same records retention schedule. It is important to remember that the email system was not designed to be an electronic filing cabinet. Instead, prudent email management requires the user to read email and make an immediate decision whether it needs to be kept and saved outside of the email system in accordance with the records retention schedule or is transitory in nature and should be deleted. In order to encourage users to regularly delete unnecessary email, an association may find it useful to set a specific number of days an email may remain within the email system. A common period for automatic deletion is 90 days. It may be possible to allow those deleted emails to reside within the deleted items folder for an additional short period of time, such as seven or 14 days. It is advisable for the legal department to work with IT and human resources staff to determine the specific time periods to apply. A cross-functional approach will address all business needs and ensure buy-in across the association.

Culture change. In many instances, invoking a period of automatic deletion of email requires a massive change from thinking of email as indispensable and email folders as a permanent repository to paring down and keeping only what is necessary.

The bottom line is that records, including email, should be kept for only as long as required under the record retention schedule and then deleted or destroyed. Keeping records longer than required exposes an association to the risk of increased liability and increases exponentially the costs of responding to discovery.

Additional considerations. It is essential to get full executive-level support within the association in order to undertake the change in mindset critical to begin saving only what is important. In addition, all automatic deletion procedures must be suspended during any periods of "litigation hold" that arise when there is actual or threatened litigation or investigation. Again, it is imperative for the legal and IT staff to work together to properly apply any automatic-deletion procedures, as well as suspension of such procedures.

Tami R. Boehn, Esq., is associate general counsel for the American Academy of Neurology in St. Paul, Minnesota. Email: tboehne@aan.com. Research assistance for this article was contributed by Sarah M.B. Nelson.

Additional Resources:

The Sedona Conference is a leading nonprofit organization on the topic of records retention. Visit their resources at www.thesedonaconference.org.

"Designing a Compliant Record Retention Policy for Your Association," by Jenna Leavitt, Association Law & Policy, July 2007.

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