Harbinger: The Imminence of Failsafe Memory

A failure to retain email records is the basis of
Wednesday’s $1.45 billion
ruling
against investing giant Morgan Stanley (via).   Apparently, the judge
in the case regarded Morgan Stanley’s failure to produce records of email
correspondence to be conspiratorial. 

Banks and broker-dealers are obliged to retain e-mail and instant messaging
documents for three years under U.S. Securities and Exchange Commission rules.
But similar requirements will apply to all public companies from July 2006
under the Sarbanes-Oxley corporate reform measures.

At the same time, U.S. courts are imposing increasingly harsh punishments on
corporations that fail to comply with orders to produce e-mail documents, the
experts said.

Where judges once were more likely to accept that incompetence or computer
problems might be to blame, they are now apt to rule that noncompliance is an
indication a company has something to hide.

I don’t know how these policies generalize to academic institutions–public
or private.  In various work situations (no need to name institutions), I
was within earshot of a few cases of email mishandling–events where this or
that person deleted email messages with certain implications, instances where
people claimed never to have received a message (even when the sender had
receipt confirming delivery), and problems with systems deletions that kick out
old messages because of limited capacities on local servers.  I suppose
we’re all familiar with cases like these, situations where the mysterious email
gnomes trick on our records systems.  If nothing else, it does call to mind
the efforts I’ve seen recently–especially in my teaching–to hear "I never
received it" or "I have no record of it," as a justification for being
uninformed.  So it’s interesting to me that in a broader, systemic way,
"incompetence or computer problems" are waning as viable excuses.  Lest I
be made accountable for reading too much into this, I’ll just say I find it
interesting because–in one example–it suggests still-shifting sensibilities
about the reliability of email.  $1.45 billion: quite a pile of chips.

Notably,
the Reuters story quotes the executive officer of a "provider of records
retention software systems" who said he anticipates this case will be viewed by
others as–in the hyperbolic blend of the week–"legal Chernobyl."  What the
heck does that mean?  Forced abandonment of email systems because of their
disastrous high-level toxicity to corporations that can’t manage fluid texts? Seems like
just the thing a provider of records retention software systems would want people
to believe.  Anything to avoid another Chernobyl.  And, sure, coupled
with the $1.45 billion ruling, a ruling that will certainly come under appeal,
many companies will be forced to rethink their records-retention processes.