A number of regulatory bodies have already recognized that e-mail is simply another medium in which business is conducted. Savvy litigators and regulatory agencies are treating e-mail accordingly. The Securities and Exchange Commission and the New York Stock Exchange, for example, clearly see e-mail as business records. They require that business-related communications be supervised and retained, regardless of format. And destroying e-mail that contains valuable business information is legally untenable.
Judges understand the difference between records management and destruction of evidence.
Courts are split as to whether spoliation is punishable by civil damages for intentional destruction or merely subject to court sanctions such as fines. Meanwhile, those who have suffered the wrath of an angry judge can tell you that sanctions alone are severe and expensive. Courts have wide latitude to impose a range of punishments for spoliation. Where regulatory bodies and courts have perceived sloppy or shady records-management practices, they have been known to impose tremendous burdens on offending parties. Both outcomes are painfully expensive - much more than managing records correctly to begin with.