Electronic messages

This kind of situation reached its apex during the Zubulake v. UBS Warburg LLC lawsuit. Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS' own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation's counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.

In 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium during the period 2005-2007 has made IM as ubiquitous in the workplace as email and created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.