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Every time someone hits the “send” button, evidence is created. This evidence contains such elements as intellectual property, trade secrets, corporate knowledge, financial transactions, customer agreements and contracts. And even what may seem like idle chatter can become important some day in a workplace lawsuit. E-mail is a rich source of e-discovery and it is being used more often in legal and regulatory actions. It was a significant source of evidence in the Enron scandal, in Martha Stewart’s case and in hundreds of other cases. According to the ePolicy Institute, 21% of companies have been ordered by courts to produce employee e-mail. A critical consideration for counsel is that when a client receives a subpoena for company e-mail, the client will either be surprised and dismayed, or confident in its awareness and control of e-mail content. The latter situation, of course, is the better one in which to find oneself. For clients who are served a subpoena to produce e-mail records, the burden involved in locating the relevant e-mails can be quite significant if they have not properly prepared for this eventuality. The process involves determining which user accounts are involved; what time period the subpoena covers; on which of hundreds of backup tapes the e-mails are located; and how to restore the appropriate tapes onto an e-mail server. The process also involves manually paging through thousands of e-mails to produce the ones that were requested. There is exponentially more effort involved if the subpoena requests specific e-mails in which certain words or phrases were used, where certain people were copied, within a certain set of dates, or any combination of these criteria. It has taken some companies years, and millions of dollars, to locate and produce this kind of information The same is true if the client needs to exclude certain e-mail records because they aren’t relevant to the subpoena request, or because they are privileged or confidential, so for companies with no process or technological solution to respond to a subpoena for e-mail records quickly and safely, there is also an increased risk of accidentally exposing confidential, privileged or potentially damaging information. These are some of the reasons why clients should be better prepared for e-mail investigations and subpoenas than they are, and why they should manage their e-mail records defensively to minimize burdens, reduce risks, reduce costs and gain other business benefits at the same time. To understand how to set up a client’s environment to handle a subpoena request for e-mail efficiently and cost-effectively, and to mitigate risk factors that cause subpoenas to arrive in the first place, it is important to understand the issues around e-mail use, e-mail retention and archiving concepts. Most people use e-mail as an informal communication medium, without giving much thought to the fact that every word they write will be saved in multiple locations for some period, maybe forever. This is especially true for internal e-mail within a company. Employees use e-mail as an unfettered, unedited narration of their thoughts on a business or nonbusiness subject. In fact, it is widely reported that nonbusiness e-mail can account for 30% to 40% of all e-mail traffic for a company. People use e-mail to discuss sensitive matters that they would not discuss in a formal traditional paper letter to their colleague or outside contact, yet e-mail is considered a business record just the same. This false sense of security in informality is one of the main reasons why e-mail can be such a potent source of discovery. E-mail retention is the concept of keeping a specified set of e-mail records for a specified time before destroying them. Data-retention strategies have been around for decades and were created out of a necessity to save physical space and cost. The difficulty in retention is that most companies try to identify sets of records not just by date, but also by type of document or who sent the document-or a combination of these indicators-so that the companies can determine the time period for retention. Identifying and classifying documents into categories is a complex, error-prone practice and, if self-regulated by individual users, does not capture self-incriminating evidence for a lawsuit. Many companies also mistakenly believe that federal regulations force businesses to destroy their records after the retention period. Regulations simply indicate how long they need to retain records; they do not compel companies to destroy them after the retention period has ended. E-mail archiving is focused on capturing every e-mail as a long-term archive of business records, as well as being a system to search for and retrieve e-mails in an efficient and timely manner. Investigating, researching and producing e-mail records from the company archive becomes as easy as a Google search. And with many advanced features of the latest e-mail archiving technologies, such as full-text search on message body and attachments, extensive reporting, privilege marking and case folders, there are even more business reasons to use this kind of system as an e-mail-management, risk-reduction and subpoena counterstrategy. Only with the potent preparedness that the combination of e-mail archiving technology, enforceable policies and best practices allows can clients efficiently respond to, and even avoid, subpoenas. Costs of destroying evidence Some legal professionals argue to the contrary, that it is better to delete e-mail records as soon as possible, with some recommending that 90 days be the retention limit. In the current regulatory compliance environment, with high-profile suits, and judges who are more educated about technology, this strategy may create even more risk if clients delete e-mail records and potential evidence so fast. One of the major risks of any destruction policy is that a client might continue to delete records after the time when the client “should have reasonably known” that a lawsuit was imminent and that all document destruction should have ceased. At that point, the client would be destroying evidence that places the entire company at greater risk of sanctions and negative outcome for that case. If a needed document has been deleted from the client’s e-mail system or cannot be produced because of time constraints, it can turn into a worst-case scenario. More and more judges are issuing adverse-inference rulings, sanctions and even handing down summary judgments against companies for failing to produce relevant e-mail records for any reason. No longer is it a valid excuse to say “it was destroyed per our corporate retention policy.” This recently happened, in a $1.4 billion judgment against Morgan Stanley that was in part due to the company’s inability to provide relevant e-mails to the court. It did not matter that the company policy was to destroy documents after the retention period was satisfied. Besides these increased risks, operating a company with such a lack of corporate knowledge among its officers, executives and managers would be unpro- ductive and shortsighted. In companies with this sort of policy, employees have been known to get around the policy by saving copies of e-mails on local computers, CD-ROMs and even portable USB thumb drives. This replication of e-mail records creates a larger risk because those e-mails are then discoverable again, yet they are spread out all over the company, potentially at the homes of employees and are not in control of the IT department, making recovery and production much more time-consuming or impossible when a subpoena arrives. E-mail is a company record that most likely will never disappear completely. There are at least two copies of every e-mail: one in the sender’s e-mail system and the other in the receiver’s system, plus the backups on both sides, plus the personal copies stored on a hard drive, then to CD as the user moves to another company. And don’t forget the cc or bcc sent to a manager, peer or other third party. There could be dozens of copies of every e-mail in cyberspace somewhere, any one of which can come to a client’s rescue in a court battle. Even if a single e-mail is produced from the opposing side and seems to have negative evidence, with related and surrounding e-mails, proper context can be given that may turn the evidence or case around. It is better to keep all e-mail records intact and to understand what clients have, how it affects their company and how to leverage advantage. Clients must now rethink why any electronic documents should ever be destroyed, especially because in the digital world, storage issues in themselves these days are not the challenges they once were. Consider: Clients do not have to destroy e-mail records because they take too much physical space. With the latest archiving technology, it is no longer valid to claim that it would take too long to wade through the “noncritical” documents to find the right ones. There are fewer legitimate reasons for ever destroying e-mail records, and more reasons for keeping them. As litigation and regulatory compliance requirements increase, having an archiving approach is a critical corporate requirement. The e-mail archiving market is flush with vendors offering ways to help clients capture, store and search for their e-mail records. E-mail archiving products will allow clients to perform text searches across the entire e-mail archive simultaneously and return relevant records much faster than any manual process. Most vendors will be able to provide a fast search through the e-mail archive, a mechanism for organizing search results into folders and even a method to flag e-mails as privileged. Very few companies know what is in their e-mail records, and that is not good news when subpoenas arrive at their offices. By searching for key words related to the matter-words like “sell stock now,” “confidential documents”-and running the integrated reports that come with these solutions, clients can understand what kind of content is contained in their e-mails, and who the key players are who may need training or supervision to prevent additional risks. Some companies are forced to settle a lawsuit because either they can’t find the appropriate records or the cost of producing them would be greater than the settlement offer. In fact, there are some attorneys who target companies without an e-mail archiving system specifically to get a quicker settlement and avoid a drawn-out court case because they know it would be too burdensome and costly to comply with the subpoenas while filtering out non-relevant e-mails. In the short term, a client must comply with the subpoena, and use considerable time and resources to provide only what is necessary and relevant; however, in the longer term, putting an e-mail management system in place will allow the client to manage employees and the e-mail content so that the client can avoid risks that generate many types of lawsuits, subpoenas and settlements in the first place. Effective client action Companies must initiate change to improve their business. They will need to clean up their act so that e-mail becomes more of a benefit than a liability. If e-mails will be kept for longer times, then employees need to be properly trained about how e-mails will be treated and what exactly they are creating when they hit the send button. This requires nothing less than a change in culture, but in the long term it may well be worth the effort to avoid risks that can ruin a company’s reputation and stock price. E-mail policy enforcement is a critical component in creating this effective, forward-looking system that reduces risk. Without an e-mail archiving system to keep management aware of policy breaches, and who is responsible, a policy is just words on a piece of paper. E-mail is here to stay, and it will become more central to lawsuits. Companies must more actively manage their workforce using the e-mail archive reports as a measurement tool just as they use other performance and appraisal metrics. Time is of the essence when a judge orders evidence to be presented by next court date. E-mail records can be produced in seconds, rather than days or weeks, only with an e-mail archiving system. If clients can produce e-mail records faster, then there will be more time available for reviewing the material instead of simply finding it. When e-mail is archived for longer periods, there are trend analyses, behavioral patterns and profiles of how e-mail is used within a company that can be very useful in such things as reducing storage, eliminating MP3 files, identifying those who abuse e-mail for personal reasons and changing policies to improve business. By implementing an e-mail management archive system, clients will be able to respond more quickly and efficiently to a subpoena, audit or investigation. This system can have the long-term benefits of helping a company educate users, change their behavior and enforce new policies-which is ultimately the only way to truly minimize the risks of using and storing e-mail. Anthony Sanchez ([email protected]) is vice president of marketing at Irvine, Calif.’s, Waterford Technologies, an e-mail archiving, compliance and discovery solutions company.

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