A Chief Information Officer from a large manufacturing company last month told me they had recently completed an internal record retention review and had determined that their e-mail system contained no records. I can understand their thinking. E-mail tends to be an informal medium that accumulates seemingly everywhere, and saving some e-mails for a specified period of time can be tricky. One little problem, though: While the company may wish or even adopt a policy stating there are no records in e-mail, regulators and courts are likely to take a very different view. And when it comes to compliance, it is the regulators' view that counts.
Organizations create documents in many different media: paper, electronic files, database systems, as well as e-mail. Some of these documents are business records that the organization has an obligation to retain for a period of time. For the most part, regulators and courts do not discriminate about what are and are not records based on their medium. A file containing a Microsoft Word document has the same legal weight as a paper copy of the same document. What determines whether a document is a business record is its content, not its medium. Companies should consider not whether there are records in e-mail, but rather which records are in e-mail.