Companies routinely keep copies of correspondence and memoranda. However, very often they do not extend this practice to email correspondence. Email correspondence is no different than your normal paperwork. You should keep copies of all of this to protect your business in any litigation.
Currently, only banks and brokers are required to retain email and instant messaging documents for three years under US Securities and Exchange Commission rules. As of July 2006, all public companies they must also do so under the Sarbanes-Oxley Act.
Notwithstanding these laws, it should be your custom and practice to keep copies of all email correspondence. Email is considered evidence, and the courts are hitting companies that don’t keep email records. Judges often rule that failure to maintain and produce email records means that the business in question is hiding key evidence.
In the recent Perelman v. The Morgan Stanley litigation, a judge’s ruling on Morgan Stanley’s inability to produce email was a key factor in the issuance of a $ 1.45 billion verdict. Based on the failure to provide email records, Judge Elizabeth Maass issued a pretrial ruling that effectively found Morgan Stanley conspired to defraud Perelman in a 1998 settlement. Morgan Stanley is not the only corporate defendant to has this problem.
In the summer of 2004, a judge ruled that UBS bank had “intentionally destroyed” evidence by email in a discrimination case. UBS was ordered to pay the costs and a jury returned a verdict of $ 29 million.
To protect your business, you must have a procedure for maintaining business-generated email communications. Failure to keep these records can lead to a ruling in the dispute that your company intentionally destroyed evidence. If this occurs, the judge can issue significant monetary penalties, automatically hold you liable, or take other severe action to ensure the plaintiff’s victory. As if such developments weren’t bad enough, there is a second risk associated with email communications.
However, maintaining email communications can have a downside. The problem arises, of course, when a communication contains statements that are detrimental to your business. Yes, the proverbial catch-22 situation.
To avoid such disasters, your company should develop a clear policy on email communications and train all employees to comply with that policy. Employees need to understand that the business environment is not one in which jokes, frivolous comments, etc. should be made. in email communications.