With the increased online activity in business, companies should take time to review and update document retention policies sooner rather than later. Many companies probably already have policies addressing email systems, but these may need refreshing. Because more and more companies have become active on social media sites like Facebook and Twitter, it’s also wise to review or update document retention polices to ensure the scope will cover such social media activity. To the extent you have different policies addressing different technologies or communications, businesses should ensure they’re consistent. (Companies may want to avoid multiple policies if it’s possible to draft one that’s broad and flexible enough to capture all electronic communications.)
Keep in mind any special obligations that might exist for your particular business or industry. Federal and/or state regulations may impose special recordkeeping obligations or considerations. For example, and as I’ve mentioned before, the U.S. securities regulator, FINRA, has regulatory guidance regarding certain record-keeping obligations brokerage firm’s business-related communications online (including on social media sites and blogs).
Companies may struggle with apparent tensions that arise between obligations to preserve relevant communications versus associated privacy concerns. (For example, privacy issues may arise when a company attempts to collect or store communications by employees or customers.) Businesses would be wise to seek legal counsel in navigating these waters.
Remember online communications may become relevant in litigation – and companies have an obligation to preserve all relevant communications, documents, and information if litigation is pending or reasonably anticipated. A company that fails to properly preserve relevant information can face hefty sanctions by the court.