Amended rules define duty to preserve work e-mails

By Allen Smith Dec 1, 2007

Like junk in the attic, work e-mail often is hastily stored and forgotten. But amendments to the Federal Rules of Civil Procedure, effective on Dec. 1, mean that now more than ever those e-mails may pour out of the woodwork and crash on employers during litigation, unless employers adopt systems to organize and keep tabs on them.

HR professionals should prod employers to adopt a system to quickly find relevant information in e-mail, according to Roger Matus, CEO of Inboxer Inc. He described e-mail as “a treasure trove for lawyers” and emphasized that it will become the subject of mandated discussions early in litigation.

New playbook

Under the amended rules, employers will have to provide access to plaintiffs’ attorneys to electronic documents that might be used in litigation even before a discovery request has been made.

The amended rules require employers to meet and confer with plaintiffs in employment litigation within 90 days after the appearance of a defendant or 120 days after the complaint has been served on a defendant. At the initial meeting, the parties must disclose to each other “a copy of, or a description by category and location of, all documents, electronically stored information and tangible things that are in the possession, custody or control of the party and that the disclosing party may use to support its claims or defenses” (Rule 26(a)(1)(B)).

This rule should result in fewer overinclusive discovery requests from plaintiffs’ attorneys as well as the all-too-standard overinclusive response from employers that they can’t afford to provide all the electronic information requested, according to Leonard Deutchman, general counsel and managing partner with LegisDiscovery LLC. Deutchman anticipated that the revised rules would provide more uniformity in courts’ treatment of electronically stored information, including e-mail, and a move away from the extremes.

In some federal court districts, such as the U.S. District Court for the Southern District of New York (which issued a landmark decisions​ anctioning UBS Warburg LLC for not preserving e-mail back-up tapes), electronic discovery already is the norm, he noted. But in other parts of the country, electronic discovery has not yet come to the fore, and it is likely to become more common as a result of the amended rules, he predicted.

Another new rule provides an undue burden or cost defense (Rule 26(b)(2)) and should shield employers from being “ordered to restore back-up tapes back to 1492,” Deutchman quipped. And Rule 37(f) provides a safe harbor of sorts by shielding employers from sanctions under the rules if information is lost as a result of the “routine, good-faith operation of an electronic information system.” This arguably might include regular purging of e-mail, according to Deutchman.

However, he noted that Rule 37(f) does not shield employers from sanctions under common law. Plus, there are some triggers that result in a duty to preserve documents, such as a letter from a lawyer threatening to sue, before a claim has even been filed, he added. Even as this rule comes out of the gate, “no one really believes it really will provide a safe harbor for management,” he remarked.

There needs to be a legal business reason behind purging e-mails for it to be in good faith, according to Matus. If the preservation of paper documents isn’t aligned with the preservation of electronic documents, a business reason may be more vulnerable to challenges.

With the new initial meet-and-confer requirement, deleting e-mails from a system entirely is an imprudent choice, Matus asserted. Even if e-mails are deleted from the system, they still may be on the hard drives at employees’ work stations if they’ve copied them, he cautioned.

Creating back-up copies of e-mails and writing them out to CD-ROMs and storing them off site also may become impractical under the amended rules, according to Matus, because it won’t be possible to reach the information quickly enough.

He said employers, and HR, have two choices: use a product that provides employers with fast access to e-mail so an employer can run keyword searches and comply with the meet-and-confer requirement. (Such products might allow employers to delete e-mails and then preserve them on the product’s parallel server.) Or employers may create e-discovery response teams.

Speak ‘geek’

Another alternative is for employers to do both, Deutchman noted, saying that HR professionals needs to be on the response teams, as well as information technology representatives and legal counsel. Each needs to be able to understand how to talk the language the others speak, whether that’s the language of business, legalease or “geek,” he said. But the needs of IT aren’t necessarily the same as those of HR or legal, he cautioned.

One challenge for HR and legal will be persuading chief financial officers that the costs of not preserving documents in good faith (referred to in legal terms as spoliation) will pale in comparison to the costs of taking such proactive measures, Deutchman predicted.

Even more proactive steps are needed, Matus added, saying training is needed for employees on the dangers of misusing e-mail. Anti-harassment training might offer employers a chance to drive this lesson home.

Inappropriate jokes and pictures in work e-mails “are on the increase,” Matus remarked. Not only are they inappropriate, they could be evidence against the employer—“a permanent record that doesn’t go away.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

Related resources:

Survey Shows Gap in Employee Understanding of Electronic Storage; New Rules Demand that Gap Be Closed, SHRM HR Technology Library, November 2006.

Ignore Now, Pay Later, HR Magazine, August 2005.

Express Request: To receive additional resources on the new rules, select key term ELECTRONIC DISCOVERY, complete and submit this form.

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