Archive it All - Is this the End of the Smoking Gun Defense?

I am not so naive as to think that corporate lawyers will now stop recommending to their executives that the company regularly delete e-mails to avoid the "Smoking Gun" in subsequent litigation. However, I do believe that Intel's e-mail problems in its current anti-trust case with competitor AMD, pokes holes in what lawyers once considered a bullet proof defense.

With the exception of highly-regulated industries, lawyers might continue to argue that there is no law that stipulates that e-mail messages, sent or received prior to onset of pending litigation, must be retained. And although this is true, there is an inherent risk in this approach.

The risk, as Intel has now learned, is that errors are likely to result when an organization tries to abruptly shift to a more restrictive retention policy. For example, if a corporation's retention policy is to delete messages automatically every 90 days, when that corporation is forced to make an abrupt change because of pending litigation, the change is nearly impossible to execute cleanly.

Mistakes will be made, primarily because of the reliance on communication to key personnel to affect this change. As critical as the new retention policy is to executives and lawyers, it is not typically regarded by individual employees with the same degree of importance. Users accustomed to a particular manner of dealing with e-mail may not necessarily sense the urgency or relevance of the change. In addition and as Intel can attest, there is a strong likelihood that individuals may not immediately fully understand what is being asked of them under the new policy.

The new Federal Rules of Civil Procedure (FRCP) effectively state that those entering into litigation must be prepared to present all electronic evidence germain to the case, in a timely manner. In civil litigation, the courts are unlikely to tolerate defendants who cannot produce electronic evidence because of flaws in their retention policy.

Case law is based on the simple principle that future legal best practises are defined by most recent court rulings. If a case like the Intel/AMD anti-trust case does not set a new legal precedent for e-mail retention, maybe the next one will. For small-to-midsize companies, a policy of archiving all e-mail messages, could help the company avoid the risks inherent in changing its retention policy because of pending litigation.