Articles - Health / Safety / Risk Mgmt

A Chief Information Officer from a large manufacturing company last month told me they had recently completed an internal record retention review and had declared that their e-mail system contained no records.

 I can understand their thinking. E-mail tends to be an informal medium, which accumulates seemingly everywhere, and saving some e-mails for a specified period of time can be tricky. One little problem, though. While the company may wish or even adopt a policy stating there are no records in e-mail, the regulators and the courts are likely to take a very different view.  And when it comes to compliance it is the regulators’ view that counts.

Organizations create documents in many different media: paper, electronic files, database systems as well as e-mail. Some of these documents are business records that the organization has an obligation to retain for a period of time.  For the most part, regulators and courts do not discriminate what are and are not records based on their medium.

A file containing an Microsoft Word document has the same legal weight as a paper copy of the same document. What determines whether a document is a business record depends on the content, not the medium.  A better question for companies to ask themselves is not whether there are records in e-mail, but rather which records are in e-mail.

We have found that every company has at least some records created or received in e-mail. In assessing more than one hundred large and small organizations last year in every case we located some records residing exclusively in e-mail.  These assessments were conducted in for both large and small, public and private, commercial and public sector organizations. Companies with low regulatory requirements may have as little as 5% of the e-mails as business records. 

For companies operating in highly-regulated environments more than 35% of their e-mails may be business records. For any given employee the amount of records varies with his or her function and level. Keep in mind that the bulk of e-mail are not business records, but in records-management-speak “transitory records,” for which there is no obligation to retain. Nevertheless, every organization has a material amount of records created or received in e-mail.

What records did we find exclusively in e-mail? A partial list includes:

• Shipping (Completion) Notifications
• Supplier Contracts
• Employee Vacation Request
• Expense Approvals
• Budget Approvals
• Project Approvals
• Internal Correspondence
• External Correspondence
• Requisitions
• Employee Reviews
• Legal Opinions
• Filings
• 3rd party Subpoenas
• Quarterly Reviews
• Vendor Transmittals
• Contract Negotiations (in particular for proving “intent”)

Declaring e-mail that contains no records is a dangerous proposition.  Regulators are savvy where the records might be. Many regulatory inquiries start with regulators wanting to see a company’s e-mail.  And we have seen the “show us the e-mail records first” tactic increase within the past two years. Answering that the company declared there are no records in e-mail is not a defensible or a good idea.

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Biography

Mark Diamond, Founder & CEO of Contoural, Inc., the largest independent provider of records & information management and litigation readiness consulting services. Additional information on this subject is available at www.contoural.com.  You can e-mail Mark at markdiamond@contoural.com.

Legal Information Is Not Legal Advice

Contoural provides information regarding business, compliance and litigation trends and issues for educational and planning purposes. However, legal information is not the same as legal advice -- the application of law to an individual or organization's specific circumstances.  Contoural and its consultants do not provide legal advice.  Readers should consult with competent legal counsel for professional assurance that our information, and any interpretation of it, is appropriate to each reader’s particular situation.

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