NOTW scandal highlights firms' email retention obligations

Amid allegations that News International destroyed important emails, Computing looks at the legal requirements around retaining email data

Police are investigating allegations that a News International executive may have deleted millions of stored emails, possibly in an attempt to obstruct the investigation into the phone hacking scandal, according to widespread reports.

The Guardian reported that it is believed that the emails revealed contact between editors at the now defunct newspaper News of the World (final edition pictured), and private investigators.

In addition, last week Labour MP Tom Watson made a statement in parliament claiming that News International, publisher of News of the World, asked its Indian outsourcer HCL also to delete emails. HCL dispute this claim, stating that they manage IT infrastructure, not data.

The allegations may make companies tasked with hosting email archives consider the legal requirements around the maintanance of these records more carefully.

Harry Small, head of the global technology practice group at law firm Baker & McKenzie, explained that companies are not generally obliged to keep records of all emails, however there are some situations in which they are.

Companies are obliged to maintain records, including emails, for accounting and health and safety purposes. These might include regulatory requirements, such as a pharmacy company running a clinicial trial – where it would be obliged to keep records to prove that participants were informed of the risks.

Also, records must be maintained where there litigation is pending or threatened.

"If there are live issues relating to a claim, and the emails are relevant to that claim, then to delete emails knowingly would be illegal. It would be contempt of court," Small stated.

If News International deliberately destroyed emails while facing litigation, then this might be considered by a court in any future trial. Small said that it is not known whether this was the case.

If the destruction of emails was out of the firm's ordinary process of destroying old data they may be accountable, he said.

"If I were litigating against somebody who had deleted emails outside of their normal process of destruction, I would raise that point. The court is not obliged to make inferences, but no doubt one side would ask the court to consider it."