Implications of e-mail mismanagement and best practices for preventing it.

AuthorIsaza, John
PositionLEGAL MATTERS

E-mail mismanagement continues to make headlines almost daily. In this article, California-based attorney John Isaza answers several questions about e-mail best practices and the legal repercussions of poor e-mail management in the United States--because bad press can be costly to any organization.

In the United States, could a person really go to jail for destruction of e-mails?

In short, yes. However, at the U.S. federal level, the punitive provisions under the Sarbanes-Oxley Act are rarely cited or used, and even so, they are limited to federal investigations and don't apply to court cases.

Should the courts ever choose to entertain it more regularly, culprits could face jail time or millions of dollars in sanctions under the little-utilized 18 USC Section 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy), which states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. Fines in the millions and the specter of 20 years in jail are serious business. The questions, thus, become:

* To what extent can an organization destroy information if it knows it is not relevant to an investigation?

* Should the organization, instead, preserve information to avoid the appearance of impropriety?

Ultimately, the choice to delete e-mails during pending or threatened litigation or agency investigations is a risk-based decision that organizations with multiple legal holds have to entertain on a daily basis. Among the questions to ponder is "Can an organization delete, say, disaster recovery tapes that include e-mails, even if there is pending or threatened litigation?" To answer that question affirmatively, the organization must be absolutely certain that the tapes are purely redundant for disaster recovery only and don't constitute their de facto records management system.

With the above as a backdrop, following are some related areas of concern.

What are some best practices in encouraging--or compelling--the deletion of old e-mails?

All these issues go the core...

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