Retention and destruction of electronic documents including e-mail records

E-mail records related to a client matter generally consist of communications with clients and communications with others, such as opposing counsel, co-counsel, witnesses or other attorneys in the same firm. These records should be considered part of the file related to that client matter (as should other documents that exist on the firm’s computer, such as drafts of documents, memoranda, correspondence and any other record that has been scanned and placed in the computer’s data base).

Because these documents are part of the law firm’s file related to the client matter, they should be kept as long as the firm keeps the paper file. (We assume that this firm already has a file retention and destruction policy and that the firm has a procedure in place for communicating that policy to clients. Generally, such records should be kept at least as long as the statute of limitations for any client malpractice claim or bar grievance. If you need additional information on such policies, please let me know.)

As part of the firm’s file retention and destruction policy, it should create a retention and destruction schedule for the electronic documents (including e-mail) with the same timing for the destruction of electronic records as for the paper records.

Of course, if there is a litigation hold, then even if the electronic records are scheduled to be destroyed, they should be preserved until the litigation has been concluded. Someone from the IT department should be designated to halt the programming on the automated software controlling the destruction of electronic documents in the event of pending or foreseeable litigation.

Once there is a retention/destruction policy in place, the firm should comply with that policy. Suspicious timing of the destruction of electronic documents has been held to warrant an adverse inference instruction for spoliation of electronic data and to support a punitive damages claim. Smith v. Slifer Smith & Frampton/Vail Associates Real Estate, LLC, 2009 WL 482603 (D. Colo., Feb. 25, 2009).