The numbers are staggering. According to Steven Griffith, author of E-mail Power, a much-lauded book on the subject: “In the U.S., 130 million employees send approximately 2.8 billion e-mail messages daily. U.S. corporations receive approximately 50 million in-bound customer e-mails every day. In a recent survey conducted by the American Management Association, it was reported the 65% of employees polled spent up to two hours a day e-mailing. A full 10% spent more than four hours per day e-mailing. Some research suggests that 80% of business communication is now handled via e-mail.”
And now there are new regulations that affect virtually every organization.
The revised Federal Rules of Civil Procedure that went into effect on Dec. 1, 2006, require organizations to be able to describe how e-mails are retained and managed within 99 days of the beginning of a legal case, and to begin negotiation on the extent of the electronic discovery within 120.
Additionally, there can be no waiting for an order of discovery. (Discovery is the process by which the other side in a lawsuit has the right to obtain all the documents, messages and materials related to the subject of the lawsuit.) Organizations now must begin searching their e-mail and other electronic data for relevant materials without waiting for a discovery order. These new laws apply not only to e-mail, but also to all electronic media such as instant messaging and text documents that have been exchanged.
This regulation change is likely to drive organizations to establish an e-mail/electronic materials retention policy and the capability to implement it. It will be critical that employees understand how the process works and the role that they must play to ensure that vital e-mails are not discarded or altered so that organizational liability is not increased.
It appears that businesses are not prepared for this task. Recent surveys by Cohasset Associates, which works extensively in this arena, found that nearly 50% of organizations have no e-mail policies or procedures in place and little communication with employees about the vital nature of e-mail retention.
Action items for companies:
Source: Steptoe and Johnson LLP
LexisNexis Applied Discovery, the nation’s leading provider of electronic discovery services to law firms and corporations, found that even inside legal counsel in larger corporations were not prepared for this shift, learning that only 7% of those surveyed felt their companies could comply appropriately with the new regulations.
Any organization not able to comply with these new regulations runs the risk of fines and instructions to a jury that the company was not responsive with discovery requirements, which could seriously damage the chance of a successful outcome to the case. While the fines might be lower for smaller organizations, we already have some evidence of how critical this process is.
An Alabama Circuit Court fined General Motors $700,000 for delaying the discovery process by 98 days. A jury hearing a case against Morgan Stanley was told that the company failed to locate one year of backup tapes containing tens of thousands of e-mails causing the company to have no choice but to consent to an injunction and a $15 million fine. The penalties are real, and are in addition to the hardships already experienced by being involved in a lawsuit.
When employers think of the numerous business and employee legal actions being brought in today’s litigious environment and the numbers of e-mails exchanged which the employer rarely sees until a legal case brings them to their attention, this new requirement is not a pleasant way to start 2007.
The increasing use of e-mail as the primary method of business communication is causing this spotlight of attention and expectation. Employers are advised to take the obligation of e-mail retention and the need to develop policy and procedure seriously so that they are not the poster child for the adverse consequences of this new regulation.