An intervention for compulsive hoarding

During most of my sessions I typically spend a few minutes outlining the "guiding principles" that served as the blueprint for our Open Text Email Management product. In effect – these are also synonymous with the business change such a project seeks to enable. On one hand, email management is about identifying and retaining business value and business record email. But perhaps most important, it is also about automating and safeguarding the deletion of unimportant, low-value email – because ultimately, this is the content that puts the most monetary burden on our litigation budget as it unnecessarily and markedly drives up the costs of identification, collection, preservation, and review.

So – not surprisingly, an email management project has to endeavor to ultimately dispose of anything deemed unnecessary to keep; but companies often struggle with the obvious consequence. What if we are accused of failing to preserve evidence? How can we possibly know that something appearing mundane and irrelevant today could take on a critical importance many years from now?

From the perspective of a records management solution provider, one of the most compelling aspects of the late 2006 amendments to the Federal Rules of Civil Procedure was Rule 37(e), the so-called Safe Harbor provision. In short – 37(e) proposed that an organization should not be sanctioned for failing to preserve evidence, so long as the associated information loss occurred as the result of routine, good faith operations of an electronic information system. I concluded a posting made earlier this week reiterating the importance of acting in good faith – and interestingly today a case crosses my inbox considering this very topic.

It seems in this particular matter, Oslon v. Sax, the defendant terminated who they believed to be a thieving employee – in turn, the employee filed a wrongful termination lawsuit, claiming her dismissal was rife with discrimination. Her alleged misdeeds were reportedly recorded on videotape back in July 2008, and not surprisingly the tape itself was requested during the ensuing discovery exercise. Even less surprisingly, the defendant responded that the tape had since been erased, given that their policy was to record over surveillance footage after a month. In the scuffle that followed, the defendant pointed to Rule 37(e), arguing that 1) the data was not erased maliciously and it was their standard practice to record over surveillance footage after such a time period (in fact, such a practice was not only used consistently in all of the defendant’s retail stores – but was also an accepted industry standard), and 2) that they were unaware of any possible pending litigation until receiving a letter from the plaintiff’s counsel some seven months later in February 2009.

Most interestingly – while the court decided the defendant should have indeed appreciated the possibility of litigation way back in August 2008 (and thus had a duty to preserve the associated evidence), the court also decided that sanctions were not appropriate given that there was no indication the defendant had acted in bad faith.

From my perspective, the primary benefit of 37(e) is that it not only protects organizations from undeserved penalties, it also frees them from the burden of a retention policy characterized purely by paranoia. Without this rule – and, of course, an ability to see into the future – organizations have no choice but to save everything forever. This particular opinion is crucial, as it reiterates once again that organizations must not be compelled to meticulously save every shred of paper or every kilobyte of data – in the unlikely event that it may be relevant to some litigation in years to come. Rather, establishing a sound retention policy, ensuring that it is enforced in a consistent manner, and ultimately acting with good intentions are fundamental safeguards against accusations of nefarious evidence destruction.