is not just federal laws you have to keep in mind, and state laws vary quite
a bit.
It is my understanding that part of the problem is that asking about
archiving "email" per se really isn't the best question to be asking when
looked at from a purely legal perspective. Of course, from a practical
perspective it is an essential questions for IT directors, but legal and
practical rarely cross paths. It is not the right question because the law
doesn't care so much about the type of document, it cares about the content
regardless of how it is stored. For example, I think it is safe to say that
you have no obligation to archive a faculty email sent to another faculty
member commenting about the Eagles embarrassing the Redskins on national TV
-- sorry, I couldn't help myself ;) -- but a faculty member emailing your
business office about a disability claim (HR records are a classic example
of content that we have a legal obligation to keep) is a completely
different matter. If you don't archive email, then the HR person should be
printing such an email and storing it in the employee's folder (or making a
PDF of the email and storing in an electronic folder).
About the only consistent thing I have heard from lawyers regarding email
retention per se is that you should have a policy and then follow it, beyond
that they are all over the map. Some lawyers have said that, from a purely
legal perspective, it is best to delete all email at the end of every day
while having a document retention policy in place to make sure that email
containing content that legally must be archived gets archived (e.g. the HR
email example in the previous paragraph). Other lawyers of course say that
we have to archive email but they never give a definitive answer to the "how
long" question.
In the absence of a definitive legal answer, I think the best approach is to
decide how long you think you should archive email
for institutional purposes, and then document your retention time somewhere
and stick to it. When in doubt regarding how long your school needs to
archive, err on the low side as discovery costs typically account for a
large percentage of the cost of any lawsuit and the more documents/emails
you keep, the more stuff to go through and the greater the cost in the event
of a lawsuit. We currently archive for 3 years but I'm leaning strongly
toward dropping it to 2 or even 18 months.
When you decide on a archiving solution, keep in mind that if you are
involved in a legal situation it will be up to you to supply the documents
required by the discovery phase so make sure the solution you pick makes
this easy and is bullet proof. Back when we hosted our own email my
nightmare was that I would be asked for emails as part of discovery that
were sent during a time period when our archiving solution failed. As a
Google Apps school Postini makes archiving email very simple and relatively
inexpensive, not to mention bullet proof.
Tom Phelan
Co-Manager ISED-L
Director of Technology
Peddie School
On Sun, Nov 14, 2010 at 8:52 AM, Chris Delmar <cdelmar@cesstaff.org> wrote:
> Wondering specifically what the current email archiving requirements are
> for private schools per the Federal Rules of Civil Procedure? It looks like
> we have to be ready to hand over email records. But how far back?
>
> Chris Delmar
> Technology Program Director
> Christ Episcopal School
> 109 South Washington Street
> Rockville, MD 20850
> 301-424-6550
>
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