This story points up the essential need for all banks and responsible business to have strong written policies on the use of social media and other E-discovery targets. Even if your system blocks use or access to Facebook, Twitter, etc. you should still have a policy that extends to discussion of company business or personnel on employees' personal computers. This is no different from having a confidentiality policy that extends to conduct outside the workplace.
It is now standard litigation practice to request discovery of all electronic records, including e-mails and social media. Therefore all banks and substantial target companies should have policies on e-mail retention and the use of e-mails and social media. E-mails still remain the main target of E-discovery. Invariably, some damaging "nugget" of evidence is found in most e-mail production under E-discovery practice.
In this day of expensive and burdensome "E-discovery" the following policies are essential:
1 A comprehensive e-mail retention policy is required with deletion times, e-mail archival times and a period after which no e-mail or electronic communication will be saved or retained in an archive (unless a "hold" is placed on it by HR or legal counsel). The electronic retention policy should cover all forms of electronic communication, including voice mail. The key to an electronic retention policy is that with modern technology no e-mail is really deleted from the hard drive. Even e-mails that are not archived can be restored, but only at great expense and burden. Most judges will not order such an undertaking absent bad faith or unusual circumstances. Archived e-mails can be accessed by computer professional on request. The question is how long should you archive? That depends on the circumstance but generally the periods should be from one to three years. Wall Street lawyers like 30 days, which is risky in New Mexico.
2. There should be policies, usually contained in the employment manual, concerning the lack of an employee's expectation of privacy on company computers, appropriate use and, if not blocked, social media policies. Most lawyer or HR prepared employment manual forms contain some of these features. Social media policies are currently not widespread but most publicly traded companies have them.
3. A social media policy covering Facebook and other forms of the social media are becoming more and more critical. Aside from cases in which employees post damaging information (worst example:: an Albuquerque police officer involved in a publicized shooting posted that he was part of the trash removal squad), their random posting about what is happening at work can be damaging in litigation or to company reputation. Anyone who has seen e-mail discovery in litigation and been shocked by the lack of thought which appears, should take a minute to view Facebook and Twitter postings which vary from the damaging to embarrassing. If your computer system does not block social media, you should have a strong policy on its use--covering everything from confidentiality to inappropriate personnel comments (some recent cases involve termination when an employee describes her jerk boss). As mentioned, this policy should extend to the employee's personal computer.
Banks should also consider training in e-mail communication, especially in this time of frequent foreclosure counterclaims over alleged "bad" loan renewals. This is a topic for a future blog.
Marshall G. Martin
Comeau, Maldegen, Templeman & Indall, LLP
(505) 982 4611
(505) 228 8506
newmexicobankinglawyer.blogspot.com
Hi friends,
ReplyDeleteA document retention program involves the systematic identification, categorization, maintenance, review, retention, and destruction of documents received or created in the course of business. A document retention policy will contain guidelines how to identify documents that need to be maintained, how long certain documents should be retained, how and when those documents should be disposed of if no longer needed, and how should be accessed or retrieved when they are needed. A good document retention policy can also be used as a litigation preparedness tool and will give in-house and outside counsel a roadmap to finding documents in the event of a document request. Thanks...
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Ms. Miza: Your comments are excellent, My concern is that most business simply don't have the will or time to institute them. Most of those learn if they have serious litigation how important your recommendations are. In my view knowing what you have and when to cease retention is the most serious issue. Being an old broken down trial lawyer, I find e-mail the most dangerous, Most companies don't heed your advice on even those items. Thanks again. Marshall Martin
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