Psystar case reveals Apple’s shaky e-mail retention policy

Jordan Golson, The Industry Standard
24 November, 2008
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Apple has sold enterprise-class storage hardware and software for years, but the company has yet to embrace systematic e-mail and document retention policies that are common among publicly traded companies.

According to a recent legal filing (page 7) in the Psystar vs Apple antitrust case, Apple employees are responsible for maintaining their own documents such as e-mails, memos, and voicemails. In other words, there is no company-wide policy for archiving, saving, or deleting these documents

This could pose a problem in the event of a lawsuit. In recent years, companies have been fined millions after failing to retrieve old emails and other files required as evidence. The fear of fines and other sanctions has resulted in many companies instituting strict “e-discovery” retention policies, and has helped give rise to a new class of enterprise-class storage and indexing tools.

An e-discovery lawyer, who asked not to be named because his employer (a firm you probably have heard of) doesn’t want him speaking to the press, explained the basic legal requirements surrounding email and document retention to The Standard. “If litigation is anticipated, the party has a duty to preserve potentially relevant documents,” he said.

“An employee retention program with no organisation or coordination is effectively incapable of compliance,” he continued, “barring an act of God, or luck akin to picking every game right in an NCAA pool. Apple’s retention policy is negligent.”

Consider this scenario: Employees could have e-mails from five years ago that become “potentially relevant”, but because there was no policy in place regarding e-documents, those records could easily become destroyed—making it potentially impossible for a plaintiff to make a case from internal documents.

However, Apple claims in the Psystar document that its policy is fine because once the company anticipated litigation:

[Apple] identified a group of employees who could potentially have documents relevant to the issues reasonably evident in this action. Apple then provided those individuals with a document retention notice which included a request for the retention of any relevant documents.

Psystar’s antitrust claim has been dismissed, but Apple is currently involved in many other cases. Apple’s weak e-discovery practices could very well come back to haunt the company.

If you’re interested in learning more about e-discovery, the relevant court case for e-document retention is Zubulake v. UBS Warburg LLC. LexisNexis gives a nice overview of what is legally required from a corporation.

For even more information, The Sedona Conference recently issued a series of guidelines which, while not legally required, are a good “best practices” guide to document preservation.

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