The last few weeks we have discussed what a Judge might do in several scenarios. This final post introduces a new fact. Assume that, however X communicates using the corporate phone, the communication is not retained. Instead, once opened by the recipient, any text message or email “vaporizes” and cannot be restored or recreated. With this assumption in mind, return to the series of facts. Here are the three fact patterns:
Rather than suggest what a judge might do – the reader should consider the following questions:
1. Might the ephemeral communication constitute a “record” for purposes of a corporate records retention policy? If so, how might such a communication be classified and when should it “sunset?”
2. Assume that the communication did not become subject to the common law duty to preserve before it was read and vaporized. What might be the consequence of the loss of the information?
3. Might the duty to preserve attach at any point? What if the duty arose before a communication had been read? If the duty did arise at that point how might the communication be preserved, if at all?
4. What might be the consequence of the loss of the communication?