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Fundamental Legal Issues
Technology Issues
Fundamental Legal Issues
People typically use e-mail as a quick and convenient way to engage in a wide variety of business activities, including discussion and revision of policies and procedures, circulation of draft documents and meeting minutes, distribution of work assignments and schedules, and actual business transaction. While many organizations have enthusiastically embraced the opportunities provided by e-mail, the vast majority overlook the fact that when e-mail messages contain evidence of business decisions, actions, and transactions, they become documents which are subject to the same legal requirements, restrictions, and standards as any record produced in any form or media.
The implications of the failure to incorporate e-mail into a records management program are most clearly seen in litigation. The 1970 amendment to Rule 34 and the more recent Rule 26(a) of the Federal Rules of Civil Procedure require that lists of all relevant paper and electronic documents, in a useable form, be transferred from one party to another early in the process of litigation (Jessen and Shear). If e-mail documents concerning a subject of litigation exist, whether in print, on someoneÜs hard drive or network system, or on backup tapes after the messages have supposedly been deleted, they are subject to discovery and must be produced upon request. Failure to produce documentation in a timely manner can result in severe sanctions. In addition, the organization may have to face the possibility that the court could give the plaintiff physical control of the equipment upon which the relevant information is stored in order to see if they are able to extract the relevant records for themselves.
The actual process of searching unmanaged and unclassified electronic data can be an enormous financial burden. In re Brand Name Prescription Drugs Anti-Trust Legislation, 1995 U.S. Dist, LEXIS 8218, *1-2 (N.D. Ill. June 13, 1995) the court ordered the defendant to review some 30 million pages of e-mail stored on backup tapes and bear the estimated $50-70,000 search cost. The court felt it unfair to expect the plaintiff to pay for the retrieval access which the defendant ought to have foreseen when designing their system (Hagberg and Olson, 1997). In another ongoing lawsuit the defendant must bear the cost of reviewing 10 years worth of backup tapes, though in this case the price tag has been estimated at $3 million (Rosenberg, 1997). Judges attempt to balance the potential cost of discovery with its likely benefit, but threat of discovery has become a very powerful negotiating tool.
E-mail handled in a public agency is subject to not only the Federal Rules of Civil Procedure, but also to the Freedom of Information Act (FOIA) and the Personal Privacy Protection Law. FOIA grants the public the right of access to all records not excluded by a specific exemption, while the Protection Law requires that agencies identify and protect all records which contain personal information. Additionally, government records are subject to the Records Disposal Act which governs the creation of General Retention Schedules by the National Archives and Records Administration (NARA) and the standards for disposal. The General Retention Schedule (GRS) covers electronic records in Section 20 and includes procedures concerning the retention of e-mail. NARAÜs policy states that, after e-mail has been copied to a paper, microform, or electronic recordkeeping system able to capture transmission and receipt data for recordkeeping purposes, it is permissible to delete all versions of the e-mail messages and associated attachments that meet the definition of federal records after the expiration of the authorized retention period or when no longer needed, whichever is later. Any electronic record which is not covered by GRS 20 may not be deleted without the approval of NARA. As will be discussed below, this policy is in the midst of a court challenge, the outcome of which has yet to be determined.
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