Electronic Discovery Law
Preservation of Email Required under Federal Records Act
Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993)
Researchers and nonprofit organizations challenged the proposed destruction of federal records (email communications). The court held that substantive email communications constituted "records" under the Federal Records Act, and that, "since there are often fundamental and meaningful differences in content between the paper and electronic versions of these documents," the electronic versions do not lose their status as records when printed out in hard copy. 1 F.3d at 1287. As such, they must be managed and preserved in accordance with the Act.
In so holding, the court rejected the argument that the electronic emails were mere "extra copies" of the printed versions. It pointed out that "important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out." Id. at 1284. "Without the missing information, the paper print-outs - akin to traditional memoranda with the 'to' and 'from' cut off and even the 'received' stamp pruned away - are dismembered documents indeed." Id. at 1285. The court found that the FRA does not "grant agencies the discretion to automatically lop off a predesignated part of a whole series of documents that qualify as records." Id. at 1286. It concluded that the practice of retaining "only the amputated paper print-outs" was "flatly inconsistent with Congress' evident concern with preserving a complete record of government activity for historical and other uses." Id. at 1285 (emphasis in original).
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