To Delete Or Not To Delete

Two recent cases, one from the plaintiff’s side and one from the defendant’s side, highlight the importance of following information retention requirements.

Recently, Heather Painter learned a difficult lesson about deleting. Ms. Painter claimed that her boss, a dentist, sexually harassed her. After filing her lawsuit, she deleted some Facebook comments that (allegedly) said she loved her job and working for the dentist. Ms. Painter claimed that she did not know it was improper to delete the comments, but the court disagreed. Deleting the posts was a deliberate act, and the court could not infer that she deleted comments, that were detrimental to her case, for an innocent reason. The judge decided that the jury should infer that the Facebook posts undermine Ms. Painter’s claims, which is a particularly rough sanction.

Even more seriously, Kurt Mix, a former high-level engineer for BP, is in trouble for deleting text messages from his employer-supplied iPhone in April 2010. A federal jury decided that Mr. Mix deliberately destroyed the messages because they would prove that BP lied about the amount of oil spilled into the Gulf of Mexico. Now he is facing a prison term of up to 20 years and a max fine of $250,000 in fines.

Back in the day, businesses only had to worry about retaining paper documents. Now, information is stored in so many places and forms. Important information is stored via hard drive, cloud drive, email, text message, social media and more. Corralling, and more importantly retaining, that information can be a herculean task, especially when employees have easy, and sometimes sole, access to the information.

So, how do you tackle this difficult issue? Develop a comprehensive information retention policy and provide your employees with training on implementing the policy.

Your information retention policy should address

1. How long information should be retained
2. When information should be retained beyond the policy limits (for example, when litigation occurs)
3. Where information should be stored and in what format
4. Procedure for inquiries regarding implementation of the policy
5. Disciplinary procedures for violating the policy

Training, which is probably more important than the policy itself, should address not only the proper retention of information, but the reasons for doing so. Your employees will be much more likely to adhere to the policy if they know they could face fines or prison time, as well as subject the company to significant sanctions in court.

And most importantly, when it comes to information, never, ever, ever try to destroy something that hurts your case. It will almost always come back to haunt you, and it will be much worse when it does.