“It raises a question of whether there were other relevant emails in existence at that time but which were also not produced, and there is no satisfactory answer because all emails not archived by the email users had since been automatically deleted from the server.”
Connor v. Sun Trust Bank[i]
An employee of a large bank was fired, and she sued her employer. In the course of litigation, the employee produced an email message from her boss that was critical to her case. However, the bank failed to produce the same email message, “despite its obvious relevance to her claims and [the bank’s] duty to produce it.”[ii] This raised several questions about the bank’s email retention and preservation practices, including its practice of automatically deleting email after a relatively short period of time.
The court found that the bank failed to preserve responsive email messages in its email system, backup tapes, and in the local email archive maintained by the employee’s boss. The latter was not preserved, even though the boss had “a general practice of archiving her email messages . . . weekly,” and had been notified of her duty to preserve.[iii] As such, the court ruled that the bank had committed spoliation of evidence, and it imposed an adverse inference sanction.
What went wrong?
While the maturity of the bank’s information governance program is not clear from the court decision, it seems likely that the program suffered from several problems, including:
- Capturing email records. Failing to provide employees with an easy and routine way to capture email messages that require retention because they are records or preservation because they are responsive to litigation.
- Centralized management. Failing to retain or preserve email in a central, standardized way to enable consistent application of policy, ease of enterprise searching, and other critical capabilities.
- Enforcing the program. Failing to ensure that all employees understood their email preservation obligations, and to ensure that they were fulfilling those obligations through routine education, training, follow-up, and audits.
What can we learn?
All organizations should strive to routinely rid themselves of unnecessary content – including email – that has neither a records retention or preservation requirement. There is nothing inherently wrong with email policies that automatically delete unwanted email – provided that there is a mechanism for required email to be retained or preserved. Relying on local email archives (such as .psts and .nsfs) is rarely an effective approach, as it complicates (or even makes impossible) the ongoing management of those messages. Failing to implement effective retention and preservation mechanisms – particularly in the face of email auto-delete policies – can result in claims that evidence was illegally destroyed (as was the case here).
It’s important to note that the court did not find any inherent fault in the company’s reliance on employees to identify and retain email; but rather in its failure to ensure that it was done properly. Organizations need to quickly issue and enforce Legal Holds so that email evidence is not disposed of as part of routine records management operations.
Just how painful can email mismanagement be in court?
Getting email management wrong can be very costly in the context of litigation. For example, in Starbucks v. ADT, it was estimated that producing email from an “old” archiving system would cost $834, 285.[iv] One recent industry study put the cost of e-discovery for a typical lawsuit at $3.5 million,[v] and yet another found that some Fortune 200 companies “reported average per‐case discovery costs ranging from $2,354,868 to $9,759,900.”[vi]
[i] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[ii] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[iii] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[iv] Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009).
[v] Institute for the Advancement of the American Legal System at the University of Denver, “Electronic Discovery: A View from the Front Lines,” 2008.
[vi] Statement Submitted by: Lawyers for Civil Justice; Civil Justice Reform Group; U.S. Chamber Institte for Legal Reform, “Litigation Cost Survey of Major Companies,” submitted to the Committee on Rules of Practice and Procedure, Judicial Conference of the United Stats, at the 2010 Conference on Civil Litigation, Duke Law School, May 10-11, 2010.