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Taming your electronic records: Heed federal rules for email, IMs

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in Employment Law,HR Management,Management Training,Office Organizer,Records Retention

American workers can access the Internet, email, instant messaging and other forms of electronic communications from anywhere at anytime.

While electronic communication helps people do their jobs, it also leaves a trail. A telephone conversation relies on the memory of two participants, but email and IM discussions can be preserved for years to come. And, given the casual way so many people fire off email these days, that can spell legal trouble for employers.

When your organization is sued, the discovery process begins. Suddenly, you're under a legal obligation to turn over lots of information related to the case. Much of it could be held deep in your organization's email and computer files. If you drag your feet or try to deliberately destroy incriminating documents, a court could hit you with big fines or even send business leaders to jail.

The Federal Rules of Civil Procedure give courts broad discretion to sanction employers who miss discovery deadlines or destroy documents.

Examples: A federal judge fined PricewaterhouseCoopers $345 million for such a delay. And another court fined Morgan Stanley for overwriting certain electronic files.

What's new

In April 2007, the U.S. Supreme Court, recognizing the new world of electronic records, approved changes to the Federal Rules of Civil Procedure. The rules require lawyers and defendants to come clean about the electronic files they retain and how to decipher them.

The rules require all parties to federal employment lawsuits (and other suits), to:

  • Sit down at the beginning of the lawsuit and hammer out plans for turning over electronic records relevant to the lawsuit.
  • Detail exactly what electronic records they have, including e-mail, memos and other records kept on hard drives, photographs, sound recordings and other data compilations.

Lawyers representing employees can demand copies of electronic records in a form that can be searched electronically. Employers can't simply print the records. That is meant to save plaintiffs the trouble of reading through thousands of pages to find what they want.

How to comply

Now's a good time to schedule a session with your lawyer to discuss how you keep your e-mail and other electronic records. Request guidance on when and how to delete or purge those files. Make sure to bring in your IT staff to the meeting.

Also, craft an effective electronic record-retention policy, one that complies with the new discovery rules but doesn't interfere with your right to delete outdated information.

The bottom line: These changes make even more of your electronic information available to the other side in a lawsuit. That's why it's more important than ever to create parameters for employees' use of electronic communications.

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