The Importance of Keeping Electronic Records Long Term
Future proofing your business against future disputes. With the electronic age, electronic records are really useful to us as lawyers. Later on, if you have a dispute, any personal messages, emails, all of those kinds of electronic records, can be really useful further down the track.
We are finding that it’s frustrating sometimes, when a dispute depends on something that might have happened ages ago. I’ve got one at the moment which my business partner’s dealing with, it was to do with a business relationship that started back in 2006 and our client’s not sure if he’s kept all of those records.
I recommend keeping all your records because you never know what’s going to be valuable later down the track. Another thing that sometimes happens, is when people get into a dispute, often if it goes onto social media, there’ll be a flurry of personal messages exchanged and a natural reaction is to unfriend the other person. Before you unfriend that person, please screenshot any messages, especially any threats, anything unpleasant, in fact anything, because you don’t really know what will be important to a lawyer later on.
One reason why records are important is that they can help you to win a case you go to court. But more important, they can actually help you avoid litigation. So we’ve got a case on at the moment, where our client had worked together with another person and she was, licensee of the main company, and now later, 10 years down the track, there is a trademark dispute. Our client has selected a trademark, which is different from her former licenser, but the former licenser is saying, “well actually, no that name is something we’ve used for years in our business.”
Our client says, “no, I can remember about six years ago, getting an email from this licenser, to say some of the licensees had been using this name as a nickname for the business. But the licenser did not want that name to be used.” It was an instruction, from the licenser to the licensees, saying, “Don’t use that nickname, that’s not our business name.” Now our client wants to pick up that nickname, and use it in her business. So, if she can find that email from six years ago, that will be really helpful, but if she can’t, it’s going to be problematic.
There was another situation where I had a client, who experienced business bullies. Somebody was making very personal and degrading threats against my client on social media, all in personal message. Unfortunately, my client didn’t screenshot it, so when we’re trying to take the other side to task, it’s very difficult because we don’t actually have a record of those messages. We know they existed but we don’t have them.
In another case, my client had a Facebook page, the marketing guy was an admin on the page and the marketing guy has now taken over my client’s business identity, kicked my client off the page, and now is doing anything they want on the page. This is a bit of a success story, because before he kicked my guy off the page this marketing guy started making allegations, saying any messages that people get from my client who actually owned the business are not official and are not from the business. So basically the marketing guy was saying, “if you get messages from me, they are official, if you get messages from this other guy, he’s a scammer.” Luckily in that case, our guy knew somebody who was still on that business page, when these messages were put up, they managed to get a screenshot of them.
But now our guy has been removed as admin from that page. He doesn’t have access, he’s been blocked from it, and his friend, who was on that page, has also been blocked from it. So it’s very difficult now to get any future proof of wrongdoing. So, keep all of your records, if you’re creating a new product, a new system, a new course keep all of your drafts. Your old versions of your course, because later on if there’s a dispute, those drafts might be the thing that saves you from a copyright infringement case. Or it might prove that you own the copyright if somebody else is infringing.
In the olden days, the rule used to be to keep your records for seven years. But when it comes to disputes, you might need to go back 10 years or 20 years. Keep everything, electronic storage is cheap and it is worth keeping it. If it’s going to keep you out of court, it’s going to save you, perhaps the costs of a litigation case, which could be $100,000. So, to future proof your business, keep electronic records as complete as you can. Including all those emails that you might not think are of any consequence.