Do not delete
|Think your text messages are private? Think again.|
When Texas drilling engineer Kurt Mix deleted strings of text messages and voicemails from his employer-supplied iPhone one day in April 2010, it's possible he was merely doing what most people who use smartphones do routinely: freeing up data storage space.
But several months ago, a federal jury in New Orleans decided otherwise. The jury determined that Mix—formerly a high-level engineer employed by BP—deliberately destroyed the messages because he knew they would prove his employer lied about the amount of oil that spilled from its blown-out well in the Gulf of Mexico.
The jury in December convicted Mix on one count of obstructing justice in connection with the BP oil spill. He faces a potential prison term of up to 20 years and a maximum fine of $250,000 when he is sentenced in a few months.
Not long ago, the idea that an individual could be held criminally liable for such a seemingly ordinary act as deleting phone messages may have seemed far-fetched. But Baton Rouge attorney Jason Cashio says the legal times are changing quickly.
"Communication these days is no longer by paper; it's usually by email or text message," says Cashio, a partner at Kean Miller.
Noting that the number of text messages sent annually now reaches into the trillions, he says it's no surprise that they are turning up more frequently in courtrooms.
"When you consider that this is a memorialized' manner of conversation, it's inevitable that the information in these messages is going to become evidence in legal cases," he says.
Lawyers increasingly are coming to view electronic communications in the same way they see the traditional letters and paper documents that have long filled filing cabinets in homes and businesses. The messages are transmissions that can contain crucial information, and they must be preserved.
The federal government said as much in 2006 when it amended the Federal Rules of Civil Procedure to clarify the process of retrieving, saving and producing electronically stored information that may be relevant to legal proceedings.
Interpreted broadly, the rules could apply to emails, computer and network activity logs, Internet files, text messages, voice mails and virtually anything else stored in electronic format.
For an individual or business that is likely, for whatever reason, to become involved in litigation, the rules highlight the need to have a data retention policy that covers both paper and electronic data, Cashio says. Such a policy should address how often electronic files are backed up or purged, and when deletion practices should be suspended because existing communications may be relevant to anticipated litigation.
"That's the real test," he says. "When there's a reasonably foreseeable chance that litigation may occur, you must take the proper steps to preserve your electronic communications, just as you would any other form of potential evidence."
Safe haven for business
Businesses of any size would do well to have a written policy on data preservation, says Kean Miller partner Jason Cashio. Such a policy provides the business with a "safe haven" in the eyes of the law. Here are some of the attorney's tips:
IT'S ABOUT PROCEDURE
If your company's policy is to dump all emails and electronic information, say, every 30 days, then that is an acceptable procedure, Cashio says, "as long as you start to properly preserve such information when you feel litigation is going to ensue."
IN THE DETAILS
A policy might stipulate how often messages contained on phones should be downloaded to a computer and backed up on a company's servers or cloud storage, and what the company's schedule is for deleting the digital data.
Many large companies have invested in systems that facilitate the downloading and storage of electronic communications for safekeeping. But small businesses also can transfer messages, including voice mails, to a computer by using software or apps designed for the task.
Given that rules and methods related to such storage are still evolving, business owners should simply consider the question of reasonableness in deciding how far to go with such policies. "No one is going to be held to a standard of perfection," he says.
Companies should evaluate whether they will be able to quickly issue a "litigation hold" and properly preserve relevant information within their electronic systems when the need arises.
PAY NOW OR LATER
Whatever the cost of implementing a data retention policy, Cashio says it will never be as expensive as having to pay for forensic specialists to extract information from electronic devices after deletions have occurred.
In the case of the BP engineer, the company did have a policy in place, and shortly after the well explosion that killed 11 people in the Gulf, BP issued letters to key employees alerting them that lawsuits were being filed and that they must refrain from deleting or otherwise destroying any paper or electronic communications, including emails, texts and voice messages.
Such a notification by a company to its employees is known as a "litigation hold," and in the trial of Mix, it played a key role. Because the Justice Department was able to show that Mix had received and read the hold instructions from his employer, prosecutors could make a strong case that he had knowingly destroyed potential evidence.
Jeffrey Brooks, an assistant professor of professional practice at the LSU Paul M. Hebert Law Center, says that the responsibility of businesses to preserve electronic communications comes into play in many, if not most, cases these days. More than 90% of all discoverable information is now in the form of email, by some estimates. Emails and text messages can come into play in both civil and criminal litigation.
Says Brooks: "It's something that lawyers need to think about in every case."
While lawyers have a responsibility to inform their clients about the role electronic communications can play in legal matters and the importance of preserving potential evidence, Brooks says clients need to take charge of their own internal policies and procedures.
"In this day and age, for a company not to have some sort of electronic communications policy is a very bad idea," he says.
He recommends that even small businesses develop a written policy that specifies how electronic communications will be stored and for how long. Businesses should identify where this digital data will be stored, whether on backup servers or in cloud-computing storage.
No one is expected to retain such material forever, Brooks emphasizes: "You just need to have a policy in place so that if you have to go to court, you can show that you deleted materials in compliance with your company's policy."
Along with texts and emails, there's another source of digital information of legal relevance to businesses. Lawyers and clients need to be aware of the implications their participation in social media may have on litigation. In a time when Facebook, Twitter and blogs have become integral to the marketing programs of many companies, management of these media has become crucial.
A nonprofit research and educational institute called The Sedona Conference has developed a host of publications related to the legal implications of electronic communications, including a primer for businesses on the use of social media.
See thesedonaconference.org to view and download its publications.
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