Email Retention Law

Instructor: Ashley Dugger

Ashley has a JD degree and is an attorney. She has extensive experience as a prosecutor and legal writer, and she has taught and written various law courses.

Most businesses use email, but not all businesses have an email retention policy. Federal, state and even local laws require businesses to retain certain email communications. This lesson briefly explains email retention law.

Business Email Retention

Does your business use email? Of course it does! The truth is, most businesses do. Larger businesses often use email to send communications between departments, but even small businesses use email to communicate with clients and vendors.

Though email is common, not all businesses realize they need an email retention policy. This is a rule regarding how long the business should keep its sent or received emails. As a business owner or manager, you may not realize that there are laws and regulations requiring you to save certain emails.

Regulatory Minimums

First, you need to determine whether or not your industry is covered by an email retention law. Retention laws set out the minimum amount of time certain emails must be saved. For example, let's say you are the business manager in a doctor's office. You need to be aware that the Health Insurance Portability and Accountability Act, or 'HIPAA', Section 164 requires you to save certain emails for a minimum of six years. The law covers all email communications relating to 'individually identifiable health information' as is defined in the Act.

Email retention laws also cover many other industries and subjects, such as:

  • The Securities and Exchange Act requires all SEC-governed companies to retain all email communications for a minimum of three years.
  • The Internal Revenue Service, or IRS, requires federal tax-related emails to be saved for a minimum of seven years.
  • The Payment Card Industry Data Security Standard, or PCI DSS, applies to parties who use cardholder information like Visa or American Express, and requires information to be saved for a minimum of one year.
  • Many state franchise tax boards, like California's, use a four-year minimum.
  • Most state revenue departments require tax-related emails to be saved for a minimum of three years.

In general, business-related emails should be kept for a minimum of seven years unless there is a clear regulation allowing the emails to be disposed of sooner. Using the longer, IRS retention law ensures you are in compliance with your other types of emails.

Business Litigation

Besides regulatory minimums governing certain industries and subjects, businesses are required to keep emails in order to comply with eDiscovery. This refers to the paperwork involved during business litigation, or lawsuits. If your business is involved in a lawsuit, you will be required to provide 'discovery'.

Let's say your client never paid his $5,000 bill, so you sued him. Your discovery items will include the paperwork proving you fulfilled the client's order and sent the $5,000 invoice to the client. When we talk about eDiscovery, we're simply referring to these same types of items in electronic form.

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