This isn't about prevention. It's training to avoid recording damning evidence. The bad behavior can continue as long as it isn't written down. Preferably implemented in pieces that lend plausible deniability.
Even companies who are innocent, and don't have any damning evidence because they did nothing wrong, need policies like this. You can be innocent and someone can still sue you, find the suspicious-sounding messages, and use them against you. Proving your innocence may cost money and reputation, not to mention that since the justice system is imperfect, there's always a chance that you can still lose the lawsuit.
This is just the corporate equivalent of "if you're not guilty, you have nothing to hide". You damn well do have something to hide even if you're not guilty, and that's why companies train their employees this way.
You are confused. The "damning evidence" is usually only damning in the court of politics and opinion. That's where it gets used too. You can't prove an antitrust case on the basis of some random set your of 500k employees saying "market share" in an email (unless they are like c level exec). Think how stupid a basis for liability that would be - "we are breaking up your company because a fresh college graduate you hired a month ago said market share in an email". The end result would be to ban email.
This is why these emails get highlighted in press releases mainly. In court, it would have to be email from someone who matters. Look at the level of exec in the emails in the Microsoft case.
Those kinds of execs are often getting regular advice from legal counsel, so usually the lawyers think whatever they are doing is okay. That's also why you also end up with emails from them later. If you have been advised you aren't doing anything wrong, there is no reason to act like you are doing something wrong. They will happily email as a result.
...Unless you are aware fundamentally that the nature of litigation is not set ahead of time, and highly dependent on the receptiveness of a judge/jury at the time of litigation.
The Judiciary is completely free to "interpret statute however it wants in the presence of a reasonable and convincing explanation of why previous case law doesn't fit the bill". This is why even a lawyer's take should be taken with a grain of salt.
Sure, but when you are trying to prove a company did something as a company, particularly as a company, you are usually going to need evidence that someone with sufficient authority to bind the company acted. For something serious like antitrust, arguing the apparent authority of low level employees (vs actual authority of high level ones) has never been a winning strategy.
Data retention training is always about limiting liability. These are the sort of companies that delete emails after 18 months no matter how much that kneecaps the employees. No amount of training will change the behavior of the sociopaths calling the shots. They need their underlings to not ruin everything for them with careless mistakes. Any other story is just a cover because they can't state their true intentions.
Companies tell employees to delete emails after 18 months because there are two alternatives: 1) delete emails after 18 months (or some similar time period), or 2) never delete emails, ever. If your policy is "delete emails based on personal preference", someone can sue you in court and claim that the selective deletions of email is evidence of wrongdoing even if you just happened to have a full hard drive that day. And you don't actually need to be a wrongdoer for someone to claim this.
