Q. A former employee wants copies of 18-months' worth of e-mails. That would be an enormous undertaking. Do we have to honor the request?
A. The good news first. If you are a private-sector employer and the request is from a former employee, you have no obligation to respond. If you are in the public sector, there may be some obligations under the Texas Open Records Act; you should follow your regular procedures for getting information on responding.
Now for the bad news. Often such requests are the opening shot in a lawsuit.
Not too long ago, the federal rules of civil procedure were changed to more specifically deal with what is now called “electronically stored information,” or ESI for short. Because of that change, lawyers have been flooded with seminar brochures, consultant pitches and warnings about the benefits, dangers, costs and potential pitfalls of asking for and being required to produce information like e-mails and other computerized records.
Each such case will have to be dealt with on an individual basis. However, it’s doubtful that having to produce 18 months' worth of e-mails would be deemed an outrageous request on its face—if they are relevant to the subject matter of a lawsuit.
You should consult your attorney about the specifics.