Key Elements of Electronic Communications Policies and Procedures for Hedge Fund Managers
Hedge Fund Law Report
Electronic communications technologies – phone, e-mail, instant messaging, social media and others described in this article – are essential to the efficient operations of hedge fund managers, but at the same time pose considerable regulatory and litigation, reputational and trading risks. Hedge fund managers cannot live without electronic communications, but may not survive if such communications are not properly handled. Moreover, electronic communications are among the most difficult categories of information to contain – they are indelible, pervasive and often determine the outcome of private and government litigation. Yet more often than not, such communications are drafted under the mistaken impression that they are as easy to erase as they are to create. Despite a lengthy list of cases illustrating the error in this view, hedge fund manager personnel continue to create and send electronic communications that would fail the commonly used litmus test: “If you wouldn’t want it on the cover of the Wall Street Journal, don’t send it.” The intent of this article is to assist hedge fund managers in creating, refining and enforcing electronic communications policies and procedures. To do so, this article first catalogues the various types of electronic communications technologies used by hedge fund manager personnel, as well as the categories of communications that may be made with such technologies. Next, the article identifies specific risks arising out of the various communications and technologies. Notably, the range of risks posed by electronic communications in the hedge fund context is significantly broader than the risk of embarrassment or bad evidence at trial – other risks relate to loss of trading advantages, insider trading charges, spoliation sanctions and more. Incorporating the discussion of communications, technologies and risks, the article then discusses the key elements of electronic communications policies and procedures for hedge fund managers.