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Mr. Plotkin formerly was Assistant Regional Administrator of the SEC's New York Office. Mr. Plotkin has twenty years of experience handling securities enforcement matters. He regularly handles private securities arbitration and civil litigation involving the securities and commodities industry, and also provides regulatory and compliance counseling to broker-dealers, investment advisers, investment companies, public and private companies, technology vendors, and individual investors. http://www.plotkinlaw.com/
Q: What trends are evolving in terms of email retention policies?
A. Companies are keeping more email across more divisions/departments and for longer periods, are moving away from using magnetic backup tapes as the primary archiving method for email, and are moving towards using more accessible and manageable archiving technologies for email.
Q: What are the biggest challenges that organizations face in establishing an email retention policy?
A: Fully understanding the policies, practices, and technologies currently in place across the entire organization, and then trying to bring some organization-wide consistency to the email retention process, which complies with any applicable federal and state laws.
Q: What impact will the recent amendments to the Federal Rules of Civil Procedure have on organizations?
A: Now there is an expectation that, from the inception of litigation, organizations will have a full understanding of their IT infrastructure, and have adequate policies and practices in place to prevent destruction of potentially relevant electronic records.
Q: What do you consider to be best practices in the management of the email discovery process?
A: The prompt dissemenation to all appropriate employees of a preservation notice that the Company is legally required to preserve electronic records that relate to a particular lawsuit, with an instruction to cease destruction, whether manual or automated, of such documents. The Company then immediately should take all necessary steps to preserve and retain the categories of documents listed in the preservation notice.
Q: What do you recommend companies do about emerging technologies such as instant messaging (IM), text messaging, pin-to-pin communication, blogging, etc.?
A: Don't allow employees to utilize the emerging technologies for work-related communications unless and until the company can archive and/or monitor those communications.
Q: Are there any privacy laws that make it illegal for an employer to monitor/read employee email?
A: A few state constitutions provide persons with privacy expectation rights which arguably may extend to their email in the workplace. However, if organizations have a clearly stated policy that employees should have no expectation of privacy with respect to their workplace email, then it would not be illegal in those states for an employer to monitor/read employee email. In the brokerage industry, on the other hand, employers are required by New York Stock Exchange and NASD rules to monitor and read the email of registered personnel.
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