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Comment by paxys | Hacker News Reader

Does an obligation to preserve electronic communication also mean that all communication has to be done electronically? Having sensitive conversations in person or on the phone – specifically so that they aren't preserved or leaked – is how most businesses (and governments and other institutions) operate. This is seen as conventional wisdom, not some nefarious plot.

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No, there’s no obligation to memorialize everything in writing. But it’s a two way street. If a conversation is important enough, the parties also have incentives to write it down (to avoid recanting or conveniently forgetting or misunderstanding important terms).

In court, testimonial evidence is usually presented under oath, under penalty of perjury. If a company is subverting recording information by only discussing sensitive items in person, a good lawyer will put multiple witnesses on the stand, ask them all the same questions about the sensitive topic, then poke holes in the inconsistencies and see who cracks first on the witness stand. It might be hard to get someone to disclose the sensitive subject, but it’s rather easy to catch someone in a lie or a cover up. That’s usually good enough.

No, there’s no obligation.

But not retaining records when under a legal hold can be very bad. The judge can impose sanctions/fines, and of course it can color the rest of the case and bias the jury against you.

Interesting q. Like there’s an obligation to create electronic communication records.

Would going for a coffee or walking meeting be in bad faith?

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