Can your employees access e-mails that are legally required to be preserved?

From the time we brush the cookie crumbs away as Mom walks into the kitchen until the US Attorney issues a subpoena for the evidence of fraud, it is human instinct to try to cover up what we have done wrong. When a company is facing legal risk, the circumstances that give rise to the problems are events, actions, communications or records which employees have created, reviewed or retained.

It is inevitable, in the 21st century, that the most likely evidence of guilt will be digital. It is also inevitable that the creators and custodians of that evidence are very likely to try and modify, alter or delete the evidence if they are given the opportunity. And, unfortunately, most litigation hold programs allow that risk to persist! Oh, the opportunities adverse counsel can exploit!

A company acquires a duty to preserve relevant information when it has notice of a specific litigation, or reasonably should know that litigation is foreseeable. At that point, most companies already are too late in protecting the records. There are few circumstances in which a lawsuit arises in which a company has no prior knowledge of the risk of its conduct—a train wreck is a train wreck and, in this era, litigation is relied upon to economically balance the outcomes of the damage done.

Yet, the most frequent course of action when a company has knowledge of a duty to preserve relevant information is to tell all of the employees most likely involved with the surrounding facts that the company (or adverse counsel, or forensic investigators) are going to come looking for the evidence. Few people can resist the instinct to consider: “What did I say? When did I say it? Can I delete whatever I said?”

Amazingly, most companies continue to execute their duty of preservation by instructing their employees to review their files, identify relevant materials and, in case after case, move the materials into a designated folder on a server or on their desktop for later collection. So, like chasing after the tell-all crumbs, employees open their e-mails, and in so doing, often alter the relevant metadata that is stored with the historical record. Of course, many still try to use the delete button, but doing so is almost always detected in the forensic analysis that follows—the consequences can be enormously adverse since the digital record clearly tells a story of cover-up and potential spoliation.

What is needed for any company is a process that protects their electronic mail records from alteration, modification or deletion by their employees that are most likely to do so.

Defending Electronic Mail as Evidence—the Critical E-Discovery Questions allows you—and your litigation hold program—to confront a hostile deposition without having to first swear to tell the truth. You learn the tough questions that await—and the consequences of having inadequate answers.