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Psystar Case Reveals Poor Email Archiving At Apple
Ian Lamont writes "Buried in the court filings of the recently concluded Psystar antitrust suit against Apple is a document that discussed Apple's corporate policy regarding employee email. Apparently, Apple has no company-wide policy for archiving, saving, or deleting email. This could potentially run afoul of e-discovery requirements, which have tripped up other companies that have been unable to produce emails and other electronic files in court. A lawyer quoted in the article (but not involved in the case) called Apple's retention policy 'negligent.' However, the issue did not help Psystar's lawsuit against Apple — a judge dismissed the case earlier this week."
From TFA:
The thing here is that litigation is always anticipated at Apple - if they're not currently suing someone, its because they're getting ready to sue. (or the legal team are on holiday [legal team pictured on the right hand side of that photo])
The other point worth noting here is that an electronic document retention policy is only a good thing to have if you're confident your employees are acting ethically (or at least unaware of any breaches).
There are shills on slashdot. Apparently, I'm one of them.
email? apple is to hip for that. its social networking, far as the eye can see...
On the Oregon Cost born and raised, On the beach is where I spent most of my days
The fear of fines and other legal 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.
I think "iDiscovery" is a much catchier name...
Joking aside, I kind of wonder about the practicality of requiring companies to retain their own documents in case of possible litigation against them. Won't this simply encourage people to use alternate means for any sort of confidential communications? Also, what proof is there of a lack of tampering? I'm not saying Apple is guilty of this, but it does cross my mind in a general sense. It seems only natural that executives will be more cautious of saying anything even remotely incriminating via e-mail. More face-to-face meetings in the future, I guess.
Irony: Agile development has too much intertia to be abandoned now.
I tell this to users all the time. Email is for communicating... not storing documents and information. Do we require companies to record all phone conversations? What about documenting meetings and informal conversations (where the real magic happens)? Why is email different? Yes I know the laymans answer - because it is already half way retained. But that doesn't equate to legal requirements for a company to retain ALL email. That is actually quite a burdon. The intranet, CMS, ERP, $software_solution, and paper copies are all that should be REQUIRED for legal proceedings.
Now, some IANAL (or IAAL) tell me why I am completely wrong.
No comprende? Let me type that a little slower for you...
Retention policy is simple: Delete anything that shows it's your fault. Save anything that shows it's somebody else's fault. Forward anything that makes your boss look good. If you're asked for copies of anything give them something that looks similar but isn't it. If you're called into court, you have a bad memory unless your lawyer says you don't. And under no circumstances should you ever, ever
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#fuckbeta #iamslashdot #dicemustdie
Man, if only Apple had access to some sort of technology that would automatically back up their emails. Something that indexed the back-ups too. Something that Just Works.
I know what you mean, if it weren't for that rape policy at work..
I record my sleeptalking
I thought that since Apple is a publicly traded company they are required to retain ALL corporate e-mails as a result of Sarbanes-Oxley legislation. What am I missing here? (IANAL, so I'm genuinely curious.)
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
Ok, I propose the following: We take up a collection to establish a prize pool to be paid to the (estate of) the first person to approach Steve Jobs and, with a completely straight face, suggest that he "Really ought to consider an enterprise grade hosted-Exchange Solution; since, after all, Exchange and Microsoft Workgroup Technologies(tm) are the heart of the dynamic enterprise."
Just remember, Steve has eye lasers, and they are powered by pure disgust.
So many companies have been hung out to dry based on emails one wonders why officers and above in the organization are even allowed to use email. They should go back to voice only, and have someone else write a memo if it is really important.
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.
Playing safe does indeed indicate good record-keeping. I'm still not a lawyer, but that seems like reasonable enough legal advice. However, he has more to say.
"An employee retention program with no organization 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."
Do you mean "negligent" in the legal sense, or the colloquial? Because, you know, now that you're being cited as an e-discovery lawyer, the inclination will be to assume that everything you say is your legal opinion or best counsel based on the sum of relevant statute and precedent.
Consider this scenario: Employees could have emails 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.
That could only be a problem under an ex post facto law, in my opinion. I am still not a lawyer, so if I'm right [meaning his advice is not so hot], we now have a good idea why "his employer (a firm you probably have heard of) doesn't want him speaking to the press."
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.
That is of course possible, but "could very well" normally implies high probability, and that is not supported by the facts given in this article. Obviously, he has a product to sell, but I would have come away with a more favorable impression of e-discovery software if he had said something more like, "if the evidence against you is as weak as the evidence against Apple in this case, you don't need a data retention policy any better than Apple's. However," I would continue if I was trying to sell some e-discovery software, "in case of better-organized litigation against you than this case, a more comprehensive data retention policy might be in your best interest." See, instead of making my sales pitch on a case that, taken on its own, indicates that my product is unimportant, I would acknowledge that my product was not important in this case, but suggest that it is not wise to assume that every case will be so easy. I think my approach appeals less to the customer's fear, and more to the careful consideration that will need to be evident in an approved purchase request.
"I can't imagine how things could get any worse!" (some guy) "That could just be failure of imaginatioÂn on your p
Our legal people won't respond to IT requests such as 'how long should we keep backups' The problem being that if they give an answer it can be used against the company.
Not having a guideline at all is the best way to circumvent that. Of course they do have a guideline for employees to delete all emails that are no longer pertinent to their jobs, but those guidelines are there for the same reason. It's all about deniability.
So I'd call this smart, not negligent.
Why would Apple bother to keep emails when they already know that the risk of the email being used against them is far worse than the penalty for not keeping them.