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That depends. If you’re working in government and in some cases outside of government you have communications retention requirements. Then there’s the destroy

That depends. If you’re working in government and in some cases outside of government you have communications retention requirements. Then there’s the destroying evidence once you’re aware of an investigation part.

OutOfHere 2y ago
> Then there’s the destroying evidence once you’re aware of an investigation part. No, it's not "evidence" if it hasn't already been collected. You're presuming there is evidence or that it is official communication. Until it's collected, it's just a chat. It's your constitutional right to delete your personal chat and to not incriminate yourself. In contrast, if you were ordered by a judge to not delete a personal chat, that's a different matter.
- erik_seaberg 2y ago
  > When a party reasonably anticipates litigation, they have a duty to preserve documents and electronically stored information (ESI). This duty is codified in the Federal Rules of Civil Procedure (FRCP) 37(e). I don't like this (it punishes private record keeping) but it's enforced, I believe also by state courts. Big tech companies set impractically short retention policies in general but also put some records on "litigation hold", because they know they can't refuse to comply.
  - OutOfHere 2y ago
    Yes, the legal way is to lose the device in a boating accident, so to speak. The federal government itself has routinely lost hard drives in this manner that were subject to litigation. More seriously, you're spot-on about setting a short retention policy. It's the primary rational way. I hope that people can understand when I'm playing devil's advocate when no one else will.
    - ceejayoz 2y ago
      TL;DR: A retention policy is fine. A new retention policy the day you get a subpoena for your records is not.
      - erik_seaberg 2y ago
        When you have reason to expect litigation you have to start excluding relevant docs from your normal retention policy.

OutOfHere 2y ago

> Then there’s the destroying evidence once you’re aware of an investigation part. No, it's not "evidence" if it hasn't already been collected. You're presuming there is evidence or that it is official communication. Until it's collected, it's just a chat. It's your constitutional right to delete your personal chat and to not incriminate yourself. In contrast, if you were ordered by a judge to not delete a personal chat, that's a different matter.

erik_seaberg 2y ago
> When a party reasonably anticipates litigation, they have a duty to preserve documents and electronically stored information (ESI). This duty is codified in the Federal Rules of Civil Procedure (FRCP) 37(e). I don't like this (it punishes private record keeping) but it's enforced, I believe also by state courts. Big tech companies set impractically short retention policies in general but also put some records on "litigation hold", because they know they can't refuse to comply.
- OutOfHere 2y ago
  Yes, the legal way is to lose the device in a boating accident, so to speak. The federal government itself has routinely lost hard drives in this manner that were subject to litigation. More seriously, you're spot-on about setting a short retention policy. It's the primary rational way. I hope that people can understand when I'm playing devil's advocate when no one else will.
  - ceejayoz 2y ago
    TL;DR: A retention policy is fine. A new retention policy the day you get a subpoena for your records is not.
    - erik_seaberg 2y ago
      When you have reason to expect litigation you have to start excluding relevant docs from your normal retention policy.