In recent years, companies, large and small, have moved away from maintaining their email servers in-house and have outsourced these services to third-party email service providers, also known as email hosting providers. Email hosting providers offer companies a wide array of appealing services, and they are growing in popularity. They assume management responsibilities for companies’ emails, including maintenance, security, data storage, and backup. Email hosting providers offer counsel attempting to obtain documents an additional source of recovery and offer companies seeking to maintain documents a chance to customize retention policies to maximize compliance obligations. The purpose of this article is to highlight these opportunities and potential pitfalls for counsel who may not be aware of them.
Obligation to Produce
With the increased use of email in all areas of business, the volume of electronically stored information (ESI) generated by a company is tremendous. Email hosting providers can help keep a company’s ESI organized, backed up, and archived in a secure and accessible manner. However, in the event a company reasonably anticipates litigation, it must remember one important principle: The ESI in the possession of its email hosting provider must be preserved and relevant portions must ultimately be produced.
