Evidence Is in the Email: Take Control With an Email Archiving System

Retaining email for too little or too long is fraught with risk. An archiving system that automates the process will keep your company from taking a fall.

Editor's Note
To view our complete multimedia package, visit our Email Archiving Supercast.

To tackle the growing volume of email, CTO Fred Mau relied on an ad hoc policy that stipulated users shouldn't keep email messages for more than 60 days. But that didn't work; many of the 600 employees at architecture and engineering firm Burgess & Niple Inc. (B&N) resorted to using personal folders in Microsoft Exchange to routinely archive their own email, which often contained project memos, design notes and even computer-aided design files. "The keep-it (versus the pitch-it) types would hang on to their personal folders and add layer after layer to them very much like a snowball," Mau says.

Next, the company imposed mailbox limits. That didn't work too well either; over time, Mau and his staff eased limits for individuals on an exception basis until mailboxes increased by three to four times their initial size.

The Federal Rules and E-Discovery
On Dec. 1, 2006, amendments to the Federal Rules of Civil Procedure went into effect, requiring companies involved in federal litigation to produce "electronically stored information" as part of the pretrial discovery process. Legal experts say the rules don't cover new ground in terms of the discovery of email -- what was previously considered discoverable is still considered discoverable. But the rules establish guidelines for how organizations should prepare for and conduct e-discovery processes; they "embody best practices that have been emerging in e-discovery," says Tom Allman, senior counsel at the law firm Mayer, Brown, Rowe & Maw in Chicago who helped craft the rules.

One concept that is new is the requirement that both parties "meet and confer" early in the litigation process. "It's a new paradigm that requires early discussions about how and where companies are preserving information," says Allman. The discussions cover all digital information subject to e-discovery, not just email. (Indeed, experts say that e-discovery for files such as cell phone images and instant messages is much more vexing.) Yet having a comprehensive email archiving system in place that classifies messages and that indexes and makes these messages easily accessible will certainly simplify things for litigants before the trial begins.

The rules also reinforce the importance of policy, experts say. If electronic information is deleted in the course of routine operations -- such as when a company purges email archives on a regular basis -- the company may avoid sanctions. That's not the case with information deleted after a company has been notified of legal action. Once a company becomes party to litigation, IT had better put a "litigation hold" on all archived information. Otherwise, a judge is likely to conclude that any information deleted after the fact is potentially harmful and will instruct the jury to draw the same conclusions.


Controlling the amount of storage needed for email didn't just present cost and maintenance issues, however. "If we were ever subpoenaed, I was afraid I couldn't find email easily," says Mau. So he made the case to management to invest in email archiving technology so messages could be indexed, searched and accessed easily. Recently, B&N deployed an archiving system from Zantaz Inc., and Mau is now in the process of centralizing archiving for all 16 of the company's offices.

Email retention and access today is as much a part of risk management as it is of storage and performance. Save too little, and you could run afoul of the Sarbanes-Oxley Act or, in the case of financial services firms, other rules set by the Securities and Exchange Commission and the National Association of Securities Dealers. Save too much, and you have evidence that is discoverable should your company become engaged in litigation. That means devoting staff time to produce the email messages and paying lawyers to catalog and read them all.

Further, IT can no longer simply back up mail servers and maintain the data on tape. With the new amendments to the Federal Rules of Civil Procedure that went into effect Dec. 1, 2006, companies are required to keep better track of all electronic information, including email (see "The Federal Rules and E-Discovery," at right). Many analysts now see archiving as key to mitigating the risks involved in litigation as well as compliance.

"The real costs of not archiving are hidden," says Matt Cain, lead email analyst at research firm Gartner Inc. "Once you get lawyers to review huge swaths of email that was recovered from tape, things will get very expensive."

Case in point: In a famous gender discrimination case in 2003 that involved investment bank UBS Warburg, the cost of restoring, searching and reviewing more than 8,000 email messages from one employee on only five months' worth of backup tapes was $19,000.

This was first published in February 2007

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