In the event of an E&O action against your agency, with few, if any exceptions, you will be asked by the attorney defending your E&O carrier for a complete copy of the file. Whether the file is paper or electronic, it is important for agencies to understand that ALL e-mails pertinent to that client file need to be included. These e-mails can be an integral part of the E&O case and whether they help or hurt the agency’s defense will depend on the time and details of the e-mails.
If your agency was suddenly faced with an E&O claim, how difficult would it be for you to provide copies of ALL pertinent e-mails? Since no agency knows when that dreaded E&O claim could happen, agencies should ensure that the pertinent e-mails can be secured quickly. This is best accomplished through a retention plan document and should speak to both incoming and outgoing e-mails. The most common means to retain these e-mails is by attaching them to the file in their agency management system. Most of the agency management systems have this functionality which includes not only e-mails but also e-faxes, voice mail files, scanned documents, Word documents and spreadsheets, etc. Typically the attachment is related to a specific policy and in some systems, this task is automatic which is beneficial (and preferred) as it should ensure that the file contains all of the applicable e-mails. This would allow the e-mails to be properly titled so that they can be easily recognized and retrieved. To accomplish this typically requires that the staff send the e-mail from within the client’s file. If this is not the norm in your agency, be certain that the staff knows the importance that the client file contain all pertinent e-mails and to take the necessary steps to physically attach the e-mail to that file.
If there is the possibility that documents that have been attached could be subsequently edited, advise the staff that this should be avoided. If it does happen, most system will track the date/time of any changes.
How long should agents be retaining their e-mail records? The easy answer is "as long as they can" and certainly getting additional electronic storage is much more cost efficient than the old paper storage approach. The type of business that they write may influence the length but as with paper, 7 years seems to be a common length.