Mr Hodgens is AVP & Senior Counsel at Global Compliance. He started by praying Peg Duncans' Practicepro webpage, which I have to say is excellent and that I should have added to my presentation: Peg, I will in the future!!
He also referred to an ABA publication by David Axelrod, the wellknown Zubulake cases and Craigball's articles that he qualified as the "Computer Forensic and EDD for Dummies" and I agree!!
And here are the highlights:
Recognize the need to treat E-mail (and other electronic records) like any other business record.
Employees need tools/rules to decide what is/is not business record:
1. Personal E-mail (Pick up a loaf of bread.)
2. Transitory E-Mail (Are you available for a meeting?)
3. Corporate E-Mail (The sale has been completed.)
Draft, Implement, and Enforce E-Mail Management Policy: I would say that I rather have it as a subset of the DM policy.
Consider Impact of E-Mail Policy on Other Policies:
- Code of Business Conduct
- Information Security Policy
- Records Management Policy (business record maintenance)
- Etc.
Partner with affected areas when it comes to drafting e-mail management policy: Time Well Worth It on Buy-In!!
Enhancing Internal Awareness:
Employee Education Campaign
(1) where the policies are located;
(2) what the policies mean; and
(3) how to implement the policies.
Tone from Top: Lead By Example
Keeping It As Simple As Possible: Simple Rules; Simple to Locate; Simple to Apply
Treating E-Mail AS IF IT IS ON COMPANY LETTERHEAD AND WILL APPEAR ON THE FRONT PAGE OF THE NEWSPAPER
Regular Reminders
Certifications of Compliance
‘Smoking Gun’ E-Mails:
Evidentiary Value:
- real-time “conversations” between participants;
“E-mail contains the precise words used by the author. Because of that, it is a particularly powerful form of proof at trial when offered as an admission of a party opponent.” - Zubulake
“conversations” are full of codes, shorthand, and abbreviations that need to be deciphered like any other business record;
back-and-forth may disclose rationale behind decisions, internal disputes/relationships/actual chain-of-command, as opposed to the organizational chart, all of which can be exploited;
may disclose the ‘true’ decision-makers;
timeline is indispensable to context: figuring out what happened and when
If relevant and not privileged, the content of an e-mail will likely make its way to a fact-finder:
Simple Rule: If ‘smoking gun’ e-mail is within scope of discovery request, produce it
Range of risks
Civil Liability
Adverse Inference Instructions
Exclusion of Evidence
Adverse Judgment
Costs of Retrieval
Inability to: establish authenticity/defend/prosecute
Adverse Impact on Reputation
Summary: "No substitute for Education/Reminders to Employees"
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