We are not aware of any retention requirements that specifically apply to emails other than certain SEC rules for broker-dealers. OCC guidance notes that the retention period for any given email depends on its content and not the fact that it is an email.

Under SEC rules, broker-dealers must retain electronic communications with customers related to their business for at least three years. Outside of that context, your bank should apply the same record retention requirements to emails as you would to other communications. For example, FinCEN’s rules impose a five-year retention period on copies of requests or instructions regarding certain funds transfers in excess of $10,000 when sent to or from parties outside the United States, and this five-year retention period applies equally when such requests or instructions are transmitted by email.

Also, due to Illinois’s ten-year statute of limitations on written contracts, we recommend retaining any email correspondence that may be relevant to a dispute over a contract for ten years after the contract’s termination. In addition, any emails related to litigation should be retained until the completion of the action and the resolution of all issues that may arise from it.

For other email correspondence, the IBA’s Record Retention Manual provides some general guidelines based on the manual author’s opinion (in other words, not based on any law or regulation). It generally recommends retaining email correspondence related to customer deposit or loan accounts for five years and destroying non-sensitive or inconsequential emails at the bank’s discretion. Note, however, that while this guide remains a helpful reference tool today, it has not been updated in several years.

For resources related to our guidance, please see:

• OCC Advisory Letter,  AL 2004-9, Electronic Record Keeping (June 21, 2004) (“As part of its evaluation of an electronic records retention system, bank management should determine which electronic messages and communications to retain. This determination will depend on whether a particular e-mail or electronic message is a ‘record’ for purposes of the particular record retention requirement or whether the bank may need it later for business or litigation purposes. Thus, banks should look to the content of particular messages rather than their format or technology. If the e-mail were considered a ‘record’ or would be retained for business purposes because of its content if it had been received or sent in paper, then it should also be retained as a ‘record’ even though it is in electronic form.”)

• SEC Rules, 17 CFR 240.17a-4(b)(4) (“Every member, broker and dealer subject to § 240.17a–3 must preserve for a period of not less than three years, the first two years in an easily accessible place: . . . Originals of all communications received and copies of all communications sent (and any approvals thereof) by the member, broker or dealer (including inter-office memoranda and communications) relating to its business as such, including all communications which are subject to rules of a self-regulatory organization of which the member, broker or dealer is a member regarding communications with the public.”)

• SEC Rules, 17 CFR 240.17a-3(a) (“Every member of a national securities exchange who transacts a business in securities directly with others than members of a national securities exchange, every broker or dealer who transacts a business in securities through the medium of any such member, and every broker or dealer registered pursuant to section 15 of the [Securities Exchange] Act [of 1934, as amended], . . . . must make and keep current the following books and records relating to its business: . . .”)

• FinCEN Regulations, 31 CFR 1010.410(b) (“Each financial institution shall retain either the original or a copy or reproduction of each of the following: . . . A record of each advice, request, or instruction received or given regarding any transaction resulting (or intended to result and later canceled if such a record is normally made) in the transfer of currency or other monetary instruments, funds, checks, investment securities, or credit, of more than $10,000 to or from any person, account, or place outside the United States.”)

• FinCEN Regulations, 31 CFR 1010.410(c) (“Each financial institution shall retain either the original or a copy or reproduction of each of the following: . . . A record of each advice, request, or instruction given to another financial institution or other person located within or without the United States, regarding a transaction intended to result in the transfer of funds, or of currency, other monetary instruments, checks, investment securities, or credit, of more than $10,000 to a person, account or place outside the United States.”)

• FinCEN Regulations, 31 CFR 1010.430(d) (“All records that are required to be retained by this chapter shall be retained for a period of five years.”)

• Illinois Code of Civil Procedure, 735 ILCS 5/13-206 (Actions on written contracts “shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing . . . within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.”)

• IBA Guide to Bank Record Retention 2013-14 (Correspondence Email (regarding customer deposit or loan account): 5 years, Recommendation by Author)