Instant Messages and the Federal Rules of Civil Procedure

I am often asked about why one should archive email messages and should not archive instant messages (IM).  The Federal Rules of Civil Procedure and various Freedom of Information Act rules require you to produce anything that is saved, but do not require you to produce things that are not saved.

Email should be archived because many copies of messages may exist across your entire organization.  For examples, users may have emails on their own PCs.

But, unless you are in one of the regulated industries that specify that IM must be stored (such as brokerages), the odds are that nobody is saving the conversations.  Therefore, if you start archiving IM, you will create new discoverable evidence.

I just finished reading an excellent article in the August 2007 issue of The Metropolitan Corporate Counsel by Timothy Carroll that actually says it is not only dangerous to archive IM, it may be illegal.

The article mentions that it is dangerous due to the "liability considerations associated with creating and then retaining harmful communications" that are not otherwise stored.  It further quotes the ePolicy institute as saying, "50 percent of IM users send or receive potentially risky and legally harmful information such as workplace gossip, jokes and confidential information via instant messaging."

But, the illegal part was new to me:

"the Federal Electronic Communications Privacy Act ("ECPA"), protects against unwarranted interception or retrieval of electronic communications. Title I of the ECPA, known as the Wiretap Act, makes it a criminal offense to "intentionally intercept any wire, oral or electronic communication." Because IM chats are conversations occurring in real time, similar to telephone calls, an employer's monitoring of IM conversations may also implicate the provisions of the Wiretap Act. Where data access, rather than message interception, is the issue, Title II of the ECPA, the Stored Wire and Electronic Communications and Transactional Records Act (the "Stored Communications Act") applies."

While it is clear that email archiving is important as a way to protect companies, IM archiving may actually do direct harm.