August 12, 2013. It is important for your business to maintain a consistent document retention policy. In doing so, do not overlook Electronically-Stored Information (“ESI”). In the modern world, people tend to send text messages and emails versus sending letters on fancy letterhead. In addition, while many companies have had document management systems in place for years, many have not adapted those systems to properly account for electronic communications. Work-related emails and text messages (and significant voicemails) should be retained no differently than communications that arrive in an envelope.
ESI has been a hot litigation topic over the past decade. When a dispute arises, and leads to litigation, many of your electronic communications will be discoverable, meaning your opponent will be able to request them and you will be obligated to produce them. If your business fails to retain such communications, it could significantly impact your chances of prevailing in a lawsuit. For example, if your adversary produces emails which are harmful to your case, you will find yourself in a difficult position when you try to convince the judge or jury that you sent a responsive email if you are unable to produce the email. You may also encounter a situation where your adversary convinces the judge or jury that you had emails which have since been “lost” and, in those instances, the judge or jury might be legally permitted to infer such emails are detrimental to your claims or defenses.
The moral of the story – save your emails, text messages and significant voicemail messages as part of your business’s standard document retention policy. If you need a larger computer or server, get it; otherwise, make backup copies on DVDs, flash drives or external hard drives. The nominal time and money spent doing so could pay dividends down the road.