Experts: Treat E-Mails As Serious Business Records

Courts more favorably disposed to businesses with e-mail retention policies but too many can't define what an electronic business record is, according to an expert.

By Dan Reynolds

E-mails can be fun and fast but they can also be costly and risk managers should continue to work with their CEO's to create better policies, according to a panelist in a webinar on electronic business record retention.

Nancy Flynn, the executive director of the Columbus, Ohio-based ePolicy Institute, which despite its wonkish-sounding name is a for-profit consulting venture, says too many businesses are stuck in second gear with their electronic business record policies.

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Flynn's company sponsored the webinar with RPost, a Los Angeles-based maker of registered e-mail software, the Los Angeles-based legal firm of Jeffer, Mangels, Butler & Marmaro LP and a combination of state, city and county bar associations.

The cost, for those that have been too busy watching re-runs of I Love Lucy and haven't gotten it into their heads that e-mails are permanent records, can run into the millions of dollars.

Flynn says in litigation judges who have the power to order record searches are far more lenient on companies that have developed and are enforcing electronic business record retention policies.

That means companies that have defined what an electronic business record is and have trained employees on when the lifecycle of such records are stand to get much better treatment.

Companies that don't have policies or don't enforce them are the ones that judges may order to spend millions retrieving every electronic record their company ever created.

The problem, according to Flynn, is that only 57 percent of employers in a 2006 survey conducted by the ePolicy Institute and the New York-based American Management Association knew the difference between an electronic business record and an insignificant record that can be deleted. More than 400 companies across a range of industries responded to the survey.

According to former Los Angeles County Superior Court Judge Dana Senit Henry, who also participated in the August webinar, the evidentiary weight of a document, that is the ability to determine whether it is an untainted business document, can be the difference between success and failure in a court case.

Flynn endorses RPost, the maker of a registered e-mail product which came out in 1999, but there are numerous registered e-mail products out there now.

Most importantly, according to Flynn, businesses and their risk managers need to take e-mails out of the realm of video games that happen to have words in them and into the realm of business letters, with all the gravitas of 20-weight paper and company letterheads.

October 15, 2007

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