I received the following inquiry from Sarita Nair of the New Mexico law firm Sutin, Thayer & Browne:
I am struggling to find a concise way to limit an obligation to delete electronic records.
As you know, many contracts and letters of intent contain an obligation to destroy documents if a commercial relationship ends. In recent years, it has become common to add in a phrase like “and remove all computer files” or “destroy all electronic records” to this obligation.
As a practical matter, it is very difficult to delete an electronic record completely. Most people delete the readily accessible ersion, but back-up files, cached versions, and versions on backed-up versions of hard drives still exist. I am hoping not to have to spell all of that out in order to limit the “duty to delete.” Have you tackled this issue, or do you have ideas?
Here’s a random example, culled from EDGAR, of the kind of provision Sarita has in mind:
Aptus shall deliver all Personal Information to CBSI or its authorized designee promptly upon written request from CBSI, and shall, subject to final accounting and billing requirements, upon a written confirmation by CBSI, promptly and permanently delete the Personal Information from its own files at the expiration or earlier termination of the Agreement.
I haven’t had occasion to consider this recently. Anyone have any suggestions?
