Issue link: http://read.uberflip.com/i/1596
www.iltanet.org E-Mail Life Cycle 5 nOT aLL E-MaIL Is CREaTEd EquaL… Common sense helps us appreciate the cost and risk of adopting a "keep everything" mentality. And fortunately, we are not legally obligated to. The Federal Rules of Civil Procedure in the United States, in particular Rule 37(E), have clearly established such a "safe harbor": Failure to Provide Electronically Stored Information: Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Many organizations interpret this guidance to mean that they may dispose of unimportant information, so long as they have done so in a documented and systematic manner. Legal provisions like these allow us to feel confident in practices that routinely purge such transitory e-mail messages. However, in order to implement such practices responsibly, companies are expected to: • Maintain policies that clearly describe their practices, and be able to demonstrate that IT systems function accordingly • Have the capacity to safeguard any potentially relevant information, i.e., to disable such practices at a moment's notice Many companies generally adopt a framework that identifies three major "categories" of e-mail: transitory, intended records, and business value. • Transitory — Many of the messages exchanged on a daily basis bear no long-term value to the company, and some are not related to business activities at all. Out- of-office replies, reminders to attend social gatherings, brief thank-you messages, and the like clutter inboxes and create noise that makes it difficult to find and work with the information that actually has value. • Intended records — In many industries, users send and receive messages that the organization mandates should be captured and retained in accordance with policy, such as discussions around potential acquisitions and contract-related correspondence. Activities such as these can generate important and sensitive content that companies might be later compelled to produce, which means that messages of this nature demand to be identified as intended records of the company or the firm and retained in accordance with policy. • Business value — Finally, some of the messages sent and received as employees are not formal records of the company, but serve some purpose to us in doing our daily jobs. These e-mail messages can't be considered transitory because they do have business value, and we need them to do our jobs optimally. Many companies typically establish general guidelines around how each category is managed: • Transitory information is retained only for a relatively short time frame, such as 90 or 180 days. • Intended records are retained wholly in accordance with what policy dictates. For example, content related to HR matters might be required to be saved for seven years following the termination of the associated employee. • Business value content is typically retained for an extended time period, based on company policy, such as two or three years, during which time ongoing retention or deletion can be left to user or attorney discretion. If yOu dOn'T havE TIME TO dO IT RIghT, WILL yOu havE TIME TO dO IT OvER? When most organizations first consider e-mail retention, they haven't yet realized the cost and risk impact. This is largely because many different factions in a corporation experience the burdens of messaging growth. Not surprisingly, the first to incur symptoms of e-mail excess is the IT department, as server space is devoured and system performance degrades. To resolve their problems, IT departments have commonly invested in and implemented conventional e-mail archiving technologies — those that extract messages from the mail environment and store them in a more suitable place, while providing users with ongoing access to their messages. Organizations often find themselves reevaluating the investment after several years' time, with many discovering that terabytes upon terabytes of content have been accumulated arbitrarily and that they are uncertain if the information has any business relevance. When such technologies were initially implemented, companies sidled up to a strategy that mandated the deletion of messages after they had been kept for a static number of years. What seems like a good idea to IT is, of course, not always in the best interest of the corporate legal department or the firm. With large-scale litigation in the headlines every week, and mismanaged e-mail the centerpiece of electronic evidence,