Legal Research

E-Discovery and the Auto-Deletion of Emails

By John Gregory

Some email programs automatically delete old emails after a fixed time. Most come with a function that allows the owner of the system to set up a time after which old emails are automatically deleted (unless they have been moved to particular storage folders, probably). This function seems useful to avoid clutter. It?s like a record destruction schedule.

Is there a standard time at which such auto-delete functions should be set, or should there be? What?s a safe time, legally as well as practically? It is clear enough that without such a function, some people (most?) would never get around to deleting their old emails, and the system would require a lot of storage. Is the setting up of an auto-delete system any different from setting up a record destruction schedule for any other record, paper or electronic?

What happens when an operation (business or government) runs into a situation of probable or actual litigation, such that the principles of (electronic) discovery would require a ?litigation hold? on relevant records? Should auto-delete on the email system be turned off? Is there a way of turning such functions off for particular users or particular subjects? (My office mail now deletes my Sent Mail after two months ? a practice instituted perhaps a year ago without any notice to users so far as I know) ? but does not delete my Inbox ever.)

Is this any different from instructing the record managers (assuming a big enough organization that such people exist) to hold off from destroying other records on the normal schedule for the same reasons?

Do you know of a good guide to such practices, beyond the general level of the Sedona Principles? Would the best practices vary according to the limitation periods of the relevant jurisdictions? I can?t think of a reason to distinguish emails from any other records, except for the automation feature on their deletion, which is a practical hazard not a justification for a legal difference.

What do you advise?

Full post as published by Slaw.ca on October 24, 2010 (boomark / email).