News that Hilary Rodham Clinton routinely used her private email account for official government business while she was Secretary of State has put e-discovery—and the mingling of  personal and business emails—on the radar of politicians and business people alike.

The State Department sought emails from Clinton in connection with its investigation into the killing of U.S. Citizens in Benghazi and Libya in 2012.  As part of the investigation, the State Department sent out email preservation notices and requests to Clinton, among others.  It soon became clear that Clinton, like every Secretary of State using email before John Kerry, had used her private email account to conduct her government business.  

While Clinton ultimately turned over thousands of emails, questions continue to circulate about

  1. whether Clinton should have been using her personal email to conduct state business;
  2. whether Clinton properly preserved the business emails on her personal account;
  3. how Clinton and her aides selected the emails that she did turn over;  and
  4. what became of the emails that were deemed “personal.”

Although Clinton’s situation involves certain issues unique to public service, similar questions often come up in the context of civil litigation between private entities, particularly as the line between business and personal lives continues to blur.

Preserving and producing emails during litigation can seem painful to businesses, a drain on resources and a distraction from business.  There are, however, concrete steps that companies can take to prepare before the need to preserve and produce arises.  Possible steps include considering:

  1. updating or implementing a record retention policy that specifically addresses the handling of business communications made through personal accounts;
  2. adopting a separate policy that restricts the use of personal email accounts—or other personally maintained mediums—for businesses purposes;
  3. reviewing compliance with any existing policies;
  4. conducting an e-discovery IT audit; and
  5. putting in place a litigation readiness plan.

Not only is planning ahead is good for business, it can also mean less expense and distraction should the company face a lawsuit in the future…or a presidential campaign!