Tesco and ASDA email probe highlights need to archive

The archiving policies of UK companies have been thrust in the spotlight after news broke over the weekend that UK supermarkets Tesco and ASDA are both fielding email archive requests from the Competition Commission. The Commission wants the supermarkets to hand over millions of emails to help its investigation into allegations of supermarket abuse of suppliers.

The emails the supermarkets need to produce cover their correspondence with suppliers in June and July when there was a price war between the two giants. Asda alone has said it will have to retrieve over 11 million emails.

The Commission is investigating allegations that the two supermarkets had threatened their suppliers and demanded discounts on goods. It forms part of its ongoing investigation into the alleged misuse of power by the UK’s largest supermarkets. The other two supermarkets being investigated, Sainsbury's and Morrisons, have not been asked to hand over emails.

Lawyers told Computerworld UK that UK law does not explicitly require firm to store emails or paper documents, except in relation to specific taxation or corporate issues. This means that in most cases it is up to firms to make their own policies regarding storage and retrieval of communications. But one key factor prompting firms to have proper archiving policies is the need to produce emails in court should they be involved in criminal or civil proceedings, the lawyers said.

One leading lawyers said that many firms keep emails for at least six years because in civil trials there is usually a statute of limitations, under the Limitation Act of 1980, which stipulates that trials have to be brought within six years of an alleged incident. Under criminal law, however, trials could take place any number of years after an alleged incident.

Yet firms still have widely differing policies about email and other storage, a lawyer at another leading practice said. “People really are all over the place with regard to storing emails,” he noted.

“It is important for businesses to demonstrate a clear policy on cleaning out emails. If they end up in court it would not look good if particular emails were being destroyed rather than there being a clear policy.”

In the case of Tesco and ASDA, their policies would come under scrutiny if they could not for any reason produce all the emails required.

One observer said: “The Office of Fair Trading [which referred the overall investigation to the Competition Commission] has the powers to demand documentation, and you have to hand it over. It is up to businesses and their legal departments, company secretaries and compliance officers to make sure they are ready for such circumstances.

“Most companies are keen to comply because it is usually better for them than resisting these requests.”

And storing emails was not as serious a challenge as it once was, said one observer .

“Storage is a lot cheaper and retrieval a lot easier than it used to be. It is also more unlikely than it was that email will be deleted, since most systems store a copy even when individual users delete them."

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