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Should you archive your organization’s email content? Consider the following:
- According to the American Management Association, 24% of companies have experienced their employees’ email being subpoenaed and 15% have gone to court because of lawsuits brought on by their employees’ email.
- In September 2007, the Financial Industry Regulatory Authority (FINRA) announced Morgan Stanley would pay $9.5 million to two sets of customers that made claims against the company, and would pay $3 million for not providing email and supervisory content.
- Best Buy filed suit against Developers Diversified Realty (DDR) and demanded electronic documents, including emails, from DDR’s backup system. Although DDR argued that the content would be difficult to produce, the court ordered production of the requested information within 28 days of the order. Law.com estimated the total cost of just the production itself at $500,000 – a cost of more than $1,400 per tape.
- In June 2005 AMD filed suit against Intel and requested that email for a small number of Intel employees be preserved. The Intel employees in question were to copy the requested email to their hard drives. However, some employees did not follow instructions properly, resulting in the loss of email that should have been part of the discovery effort over a period of more than three months. The Wall Street Journal reported that Intel has spent $3.3 million to process tapes to recover the necessary emails.
- Email storage is growing at an average rate of 35% annually – three out of five decision makers cite the growth of messaging storage as their leading messaging-related problem.
Messaging archiving can help organizations to solve all of these problems and can satisfy a wide range of legal compliance, regulatory, storage management, knowledge management and other problems. Further, messaging archiving will, in most cases, reduce the risk from non-compliance with legal or regulatory obligations, reduce overall storage costs and will retain corporate ‘memory’ stored in messaging systems.
This white paper discusses the several reasons to implement a messaging archiving system and provide an overview of ten vendors whose offerings are focused squarely on the archiving space.
There are a variety of reasons to deploy messaging archiving, any one of which can often justify the entire cost of the archiving capability.
LEGAL COMPLIANCE
The Federal Rules of Civil Procedure (FRCP) are, arguably, the most important single reason for organizations to deploy a messaging archiving capability. The FRCP are a body of rules focused on governing court procedures for managing civil suits in the United States district courts. While the United States Supreme Court is responsible for promulgating the FRCP, the United States Congress must approve these rules and any changes made to them.
A number of important and substantive revisions to the FRCP went into effect on December 1, 2006. These changes represented several years of debate at various levels and will have a significant impact on electronic discovery and the management of electronic data within organizations that operate in the United States. In a nutshell, the changes to the FRCP require organizations to manage their data in such a way that this data can be produced in a timely and complete manner when necessary, such as during legal discovery proceedings. The new amendments codified Electronically Stored Information (ESI), effectively making electronic data more important in the context of legal discovery and litigation in general.
Email contains a growing proportion of business records that must be preserved for long periods. Further, email is increasingly requested during discovery proceedings because of the FRCP and related issues. As a result, it is critical that email be made available for legal discovery purposes.
LEGAL HOLDS
When a hold on data is required, it is imperative that an organization immediately be able to begin preserving all relevant data, such as all email sent from senior managers to specific individuals or clients. An archiving system allows organizations to immediately place a hold on data when requested by a court or on the advice of legal counsel.
If an organization is not able to adequately place a hold on data when required, it can encounter a variety of serious consequences, ranging from embarrassment to serious legal sanctions or fines. Litigants that fail to preserve email properly are subject to a wide variety of consequences, including brand damage, additional costs for third-parties to review or search for data, court sanctions, directed verdicts or instructions to a jury that it can view a defendant’s failure to produce data as evidence of culpability.
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