Earlier this week, the New York Times reported that Hillary Clinton "exclusively used a personal email account to conduct government business as secretary of state," allegedly running afoul of federal laws and regulations concerning the preservation and safeguarding of official communications.
Putting aside any potential political ramifications of this issue, why should the private sector (businesses and their employees alike) take notice of this story? After all, many people have both personal and work email accounts – what is the difference if we use either for both work and personal reasons?
From a business records retention and electronic discovery perspective, such a practice can present huge risks and potential expense.
While the Federal Records Act does not apply to the private sector, some of the primary goals of the Act are to preserve and archive important records of the governmental agencies, to ensure the economical and efficient management of those records, and to keep effective controls and security with regard to the maintenance and use of those records. 44 U.S. Code § 3102.
Businesses have many of the same interests. They need to make sure that their important business documents are properly preserved and archived so that they can be found quickly later, if and when needed. They need to make sure that documents (and emails) containing sensitive business information are secured and can be accessed only by those on a need-to-know basis. And they need to ensure that their business records and data are managed in a cost-effective and efficient manner. As a result, many businesses have made significant investments in developing their own records retention policies, private computer and email systems, and IS security programs. But those efforts can become wasted when employees circumvent the system by using personal email accounts and devices to create and store work-related information.
The practice of storing work-related emails and documents in one's personal email accounts and devices can also have a significant effect (for both the business and the individual) in the realm of electronic discovery. When a business finds itself involved in litigation, it will at some point be required to collect and produce potentially relevant documentation relating to the case. This would certainly include searching the company's own computer systems for relevant emails and documents. However, if a key employee created and/or stored potentially relevant information outside the company's systems and in their personal email accounts and computers, the company may be required to search for any business data in those locations, as well. This can often create significant tension between the business and the employee, who has an interest in maintaining control over the sensitive and private information, which they have now effectively intermingled with the company's business data. In addition, the costs of performing e-Discovery collections almost always increase with each additional source of data that must also be collected, searched and reviewed. Thus, the company (or sometimes the individual) must bear an additional expense in having to preserve, collect and search for documents that now exist outside of one, centralized system.
As a result, the Hillary Clinton story can serve as a precaution to businesses that they have a strong incentive to develop policies and centralized computer/email systems, both to promote the filing of important business records in an appropriate way, and to prevent employees from circumventing that system.
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