There can be legal repercussions for companies that don’t live up to compliance requirements. Tips for developing, executing and managing archiving policies – and how to keep the situation from getting out of control in the first place
IT faces a lot of challenges with e-mail archiving, but the real issue comes down to a difference of opinion, said George Goodall, senior research analyst at Info-Tech Research Group Ltd. “Striking the middle ground is very difficult and it makes nobody happy. That’s the situation IT always finds itself in — between the rock of corporate counsel and the hard place of user demands,” he said.
End users want to keep everything forever because they use their inboxes as knowledge management systems and knowledge stores; meanwhile, legal counsel and senior management will typically advise IT to not keep anything and delete it immediately, he said.
Goodall’s first piece of advice for IT managers developing e-mail archiving policies is to learn how to establish documents from records. “There’s a real distinction between what a record is and what a document is, in that records are susceptible to retention schedules and documents aren’t. When we talk about minimum retention periods, that applies to records, not documents,” he said.
Second, focus on the overall retention schedule for all records because ideally, e-mail is going to be a subset of that, said Goodall. E-mail should be viewed as part of an overall process on retention schedules, he said, because e-mail itself is more like an envelope or a cover letter. “It isn’t necessarily a document type or a record type. It’s how you recognize those things internal to it,” he said.
Third, focus on the three different motivators applicable to any archiving project — regulation and litigation, IT efficiencies, and worker productivity — and make sure you reconcile them, he said. “Those three factors really have to be balanced. Anytime you are working, let’s say, towards worker efficiency but not recognizing IT efficiency or the legal implications, there is going to be trouble,” he said.
Archiving solutions will focus on the benefits related to litigation concerns, such as searching, auditing, discovery and automated retention periods, said Goodall. But that secondary store for e-mail is another important benefit, he said. “It greatly improves the operational efficiency of a traditional e-mail architecture, because it basically takes all messages coming in and breaks them up into a relational format,” he said. This detects duplicate data and multiple versions of the same attachment, he said.
If someone, for example, returns from a honeymoon and e-mails 30 photos to everyone in the company, everyone’s e-mail inbox will have those 30 images, he said. “E-mail archiving give you the ability to parse all of that … it gives you IT efficiency there,” he said.
“A lot of IT managers actually make the case for e-mail archiving, not necessarily from the litigation side, but from the IT efficiency side. It enables them to delay buying storage or improve the efficiency of their Exchange server,” he said.
Keep or delete?
In terms of the legal implications of e-mail retention, there are two considerations: regulation and litigation. “From the compliance side, we have to keep things for a minimum period of time and then on the litigation side, we have to basically get rid of things as soon as possible,” Goodall said.
The result is a real tension between deciding how long to keep things and what to get rid of, he said. Keeping everything indefinitely “is not necessarily a great strategy” because of concerns such as storage, but “if you keep everything forever, you are covered from a regulation standpoint, he said.
“There are real challenges there because if someone files a motion of discovery … you are going to have to discover that, and if the litigation can prove that you have spoiled information or withheld documentation, that is contempt,” he said.
In terms of best practices, what IT managers should keep in mind is the length of time they are forced to archive messages, said Dave Pearson, senior research analyst at IDC Canada Ltd. “I think it’s safer to assume that you should always have these e-mails,” he said. “You should be looking at a solution where you can keep an indefinite paperless trail of your e-mails and just assume that you should stay ahead of regulations.”
The general perception is that volume is the problem and companies need to have document retention policies, records retention policies and eliminate e-mails after a certain period of time, said Stephen Maddex, lawyer and associate in the commercial litigation group at Lang Michener LLP in Ottawa. But “organization is the key,” he said.
Before e-mail, businesses “maintained massive databases of records of files in paper and it was never a problem to figure out whether you had documents that responded to a specific litigation … because it was organized,” he said.
It’s not so much that there is a lot of e-mail, but that it is maintained in a “massive, disorganized haystack,” he said. “What people figured out was that the value of any given record to litigation wasn’t what was written on the record, but it was the value of the cost it would take to remove that needle from the haystack,” he said.
Businesses stopped maintaining their records in an organized fashion with e-mail and “that’s what created the e-mail problem of discovery,” he said.
Another point to keep in mind, he added, is that it is a business decision as to whether or not you keep any files at all. “You could have a policy that says no e-mails are going to be saved on any server or any device or anything more than 30 days,” he said.
If you have a general business policy or organizational structure that purges all e-mails, then there wouldn’t be any obligation to go back and produce all the e-mails, he said. Exceptions include spoliation (the destruction of evidence) and litigation holds (a stop order).
Developing an e-mail archiving policy is not just a tech issue, said Thomas Sutton, a litigation partner at McCarthy Tétrault LLP in Toronto. “One of the biggest challenges I see in making sure that the various parts of the enterprise actually do co-ordinate on this,” he said.
Depending on the size of the institution, this could include IT, in-house legal counsel, human resources, corporate security and records management, he said.
(To get a basic understanding of Canadian e-discovery law and how it differs from the U.S., read “Don’t lose sleep over U.S. e-discovery nightmares.”)
Speed and accuracy of retrieval
“The most important thing to realize about e-mail archiving is that it is really all about minimizing the costs of retrieval,” said Roger Matus, executive vice-president of Safecore Inc., which purchased Inboxer Inc. in 2009.
“Litigation support costs swamp the price of any e-mail archiving system,” he said. “If you have to use an older technology to find messages and you are paying someone hundreds of dollars an hour to find them, that very, very quickly overcomes the cost of the system.”
IT managers may not realize that they can’t hire the lowest-paid member of their staff to review messages, he said. First, you don’t want that person reading the e-mail of the CEO; second, that person might not have the background to be able to make that decision about whether a particular message is relevant for a legal case, he said.
“As soon as you realize those two things, you realize you are going to get a trained litigation support person involved and those people are not cheap,” said Matus. “What you want to do is minimize the amount of time that it takes those people to find the relevant messages, so at the end of the day, it’s all about the speed and accuracy of retrieval.”
Many e-mail archiving solutions are focused on reducing storage costs, but storage is getting cheaper, so the savings vendors show today may not be relevant a year from now, he said. Storage costs drop about 50 per cent a year, whereas litigation costs are going up, said Matus.
Inboxer, an e-mail archiving solution for the mid-sized enterprise market, pre-indexes messages so when a search is performed, the retrieval is quick because the messages are already identified, he said. The solution has identified 80 items that are most frequently searched by users, which include senders and recipients as well as Canadian SINs and provincial drivers licenses, he said.
Organizations need to set the policies of what needs to be kept and what processes need to be followed, and then IT needs to prove that the process has been followed or the documents have been kept in an immutable way, said Patrick Eitenbichler, director of worldwide product marketing, information management, software at Hewlett-Packard Co.
It’s important to have policies in place to capture relevant information, but it may not be necessary to capture all documents from all employees, he said. “If a document was rightfully deleted based on the policy they have set, they are actually much better off from a compliance perspective … because it is clear they set a policy and they made the best effort to capture the relevant information,” he said.
Solutions to check out
■ Autonomy ZANTAZ
■ Barracuda Message Archiver
■ Email management component of the Open Text ECM Suite
■ EMC SourceOne (formerly EMC EmailXtender)
■ GFI MailEssentials
■ Google Postini
■ HP TRIM 7
■ IBM CommonStore
■ InBoxer from Safecore
■ Novell GroupWise
■ Symantec Enterprise Vault
■ Symantec Hosted Services
Symantec Enterprise Vault is “kind of the product to beat” in terms of market share and functionality, said Goodall. But a lot of document management and storage vendors will have solutions, he said.
Nearly every integrated vendor like HP and IBM has its own solution for Microsoft Exchange or Lotus Notes, said Pearson. But there are also smaller companies like Barracuda, which has an interesting hybrid solution for SMBs, he said.
If you are considering a cloud-based e-mail archiving solution, “the most important aspect and maybe the key differentiator between alternative solutions is in the service level agreements,” said Paul Wood of Symantec Hosted Services.
The SaaS model works for any size organization, said Wood. “A lot of organizations now have reached that tipping point and looking at the same solutions that large Fortune 500-type companies will have … but it will be available to them at a scalable cost using a SaaS model so they don’t have to invest huge amounts in their infrastructure in order to provide that solution and that capability.
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