Claims that News International ordered its outsourcing company to delete emails should force all companies to examine how long they store data, according to one legal expert.
Harry Small, head of the global technology practice group at law firm Baker & McKenzie, says companies are not generally obliged to keep records of all emails, however there are some situations in which they are.
Companies are obliged to maintain records, including emails, for accounting and health and safety purposes. These might include regulatory requirements, such as a pharmacy company running a clinicial trial – where it would be obliged to keep records to prove that participants were informed of the risks.
Also, records must be maintained where litigation is pending or threatened.
“If there are live issues relating to a claim, and the emails are relevant to that claim, then to delete emails knowingly would be illegal. It would be contempt of court,” said Small.
If News International deliberately destroyed emails while facing litigation, then this might be considered by a court in any future trial. Small said that it is not known whether this was the case.
If the destruction of emails was out of the firm’s ordinary process of destroying old data they may be accountable, he said.
“If I were litigating against somebody who had deleted emails outside of their normal process of destruction, I would raise that point. The court is not obliged to make inferences, but no doubt one side would ask the court to consider it.”
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