Hillary Clinton never imagined her digital naivety would light up a public relation scandal due to “missing” personal emails.
Nigel Wright, former Chief of Staff to Canada’s ex Prime Minister, could not have anticipated his quick “Good to go” email would help feed the acrimonious criminal trial of a former friend thrown under the political bus.
And more recently, David Livingston, former Ontario Chief of Staff to Dalton McGuinty, is now facing criminal mischief charges for allegedly authorizing the destruction of possible incriminating emails.
Electronic breadcrumbs have bitten some of the most astute political gamers. But you my friend, will be one step ahead of most of your colleagues if you understand your e-obligations and take simple steps to CYA (Cover Your Ass) in a digital world.
What Is E-Discovery
Let’s start at the end.
The strength of any legal case depends on the quality of information and evidence. The better the information, the better the outcome. Today, most information and evidence are digitized (think emails, Word docs, pdf, video, mobile calls, voice messages, etc…) The process of gathering information for a legal dispute is called e-discovery. If you’re unaware of your e-obligations, you’re possibly walking into a minefield disguised as a tulip garden. Let me explain.
Assume you are in business. Your business partner is a goof and things are getting a little tense. Finally, all hell breaks loose. You exchange nasty emails. In a fit of frustration, he terminates the partnership (or does he really)? Now the fun part. Is the partnership at an end? What about revenues, losses, assets and confidential supplier information? Your shareholder agreement was drafted when you started the business, a long time ago.
“It depends on the intention of the parties”, your lawyer says. Geeze. That means you must review all your emails, contracts, text messages, slide decks, pitches and original supplier agreements. Time to dig into your email throve. The more the information substantiate your position, the better your leverage.
Identification and Preservation
When litigation becomes foreseeable, you and your ex business partners are under an obligation to preserve relevant electronic stored information (ESI), commonly known as a “legal hold”. A “Preservation letter” formalizes that obligation not to destroy electronic data as of a specific date. A legal hold is intended to prevent spoliation or destruction of digital data. Sounds straight forward, right? Not so. Read on.
What do you do with your prior deleted emails? What happens to all your emails when you change jobs, email address or mobile phone? If by chance you still have all the prior emails, do you want the opposing parties and their legal counsels to read every single email unrelated to the litigation because they happen to be in the same mailbox?
Mobile phones are particularly problematic. Many GenXers and Boomers are happy with the basic email service provided by phone or cable companies (i.e. Bell, Rogers, Comcast). That basic email service is likely managed pursuant to a POP3 protocol. This type of email service will not likely help your litigation if you are looking for past emails. You know you likely have a POP3 email if you rely on your cable or phone service provider for your email address. If you have a Gmail, Mac Mail, an Outlook or Yahoo account, you likely have an IMAP account (good).
POP3 protocol is geek-speak to describe emails received locally on mobile phones. Such emails are not necessarily stored in a central server. In a POP3 environment, when you delete your emails on your mobile phone, your emails are likely, gone – for good. Hence, the opposing party may have the upper hand in curating a version of the facts you may not be able to rebut. In an IMAP environment, emails are centrally stored for better synching across all your devices and computers. With IMAP, it’s also easier to establish automated rules to archive and delete emails and chats.
Conversely, some people actually seek to hide or forget information. To that end, they choose POP3 protocol to delete information without showing “intent”. In Canada, you risk being charged for “wrongdoing to handle computer data” if you knowingly or with intent, cause to delete information that might be required as part of an investigation. POP3 protocols can be a convenient way to disguise intent. Judges would roll their eyes in glaze in understanding the subtleties of such finer technical points. Suffice to say, POP3 protocols might be an antiquated solution if your masterplan is to shake off digital breadcrumbs.
In summary, whether you are in business or you are an employee, think about the nature of your activities and the type of information you encounter. The more you are dealing with uncertainties, change and unpredictability, the more you require an email retention strategy. If you are working with confidential information (perhaps a lawyer, journalist or a political operative), you are putting your assets at risk if you do not have a plan to systematically automate your email retention strategy as part of your daily habits. The good news: it’s relatively simple – even for non geeks – to have an automated email retention strategy.
How To Digitally CYA?
Let’s assume your strategy is to optimize your information retention strategy (as opposed to hiding stuff). Whether you are an employee or a business professional, the goal here is to have the right system to archive your emails without breaching any confidentiality provisions and legal obligations.
Step 1: Get an email system based on IMAP protocol. If you are in business, that means a registered domain name (i.e. myname.com). Domain name is your digital address to tell people where to send emails. If you do not have a domain name, get one via sites like GoDaddy. However, don’t rely on GoDaddy’s servers to “host” your emails. Instead, set up your email with server solutions like Office Online / OneDrive or Google Apps for Work. Both services are powerful and affordable solutions for solo and small businesses. Even if you are not in business, you should get your own professional email address. You never know when you will be laid off or in career transition.
Step 2: Learn good digital habits. For example, discover the power of junk mail filtering in a Mac environment. Well known technologist and investor Brad Feld wrote an excellent blog post on how he handles tremendous amount of emails (incidentally, Unsubscribe comes highly recommended to quickly unsubscribe without leaving your inbox). Learn the practical difference between trashing and archiving emails for paid Gmail accounts. Discover the power of labeling your emails for future retrieval efficiency. Unfortunately, Outlook’s archive function is less intuitive but works.
Step 3: Set up general retention rules. Decide whether you want to archive emails for a set period of time. For example, you may want to hold messages for 180 days after you trash emails. Google Apps for Work allows for custom or general retention rules.
Step 4: This step applies when you anticipate litigation or receive Legal Hold Notice (known as Preservation Letter). The Google Apps Vault add-on (https://apps.google.com/products/vault/) is designed to retain, archive, search and export your emails and chat messages for either long term archiving or possible eDiscovery obligations. That is why Google Apps Vault is a great add-on app to archive electronic communications for extended periods of time without exposing your entire email for review by third parties. For other documents and digital files, Google Drive and Box are not recommended. Crashplan and Carbonite are great online shared cloud services to backup your files. AirPort Time Capsule or better, Transporter Private Cloud are safer solutions because you have complete control of the backup.
Microsoft’s Exchange 2016 has two types of holds: Litigation Hold and In-Place Hold. Litigation Hold will place all your mailbox on hold. In-Place Hold will preserve only items that meet a search criteria (i.e. email between certain individuals).
Thankfully, your digital Cover Your Ass (CYA) strategy does not require a paranoid view of work and lurking conflicts. Rather, a digital CYA is a continuing process to clean out your digital drawers periodically in accordance with modern best practices. Resources such as Google Vault, are also powerful tools to safeguard your electronic data even if you are a non geek facing possible litigation. In short, by learning the difference between archiving and deleting, you will have already achieve a major step in learning how to cover your butt in our digital world.