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I Have to Show Them What?!

E-Mail and the process of electronic discovery

While e-mail may be a killer app, poorly archived e-mail can kill a business. During a recent prescription drug antitrust case, the plaintiff demanded a discovery search of 30 million pages of e-mail stored on the defendant’s backup tapes for names of particular individuals. The defendant suggested the plaintiff shoulder the cost of compiling, formatting, searching, eliminating duplicates, and retrieving the requested e-mail. Sadly, the defendant lost the argument and the court found the burdensome and expensive discovery process was the defendant’s problem because of a bad e-mail retrieval process. The defendant paid through the nose.

Court cases routinely approve discovery motions to sift through electronic documents, especially ubiquitous e-mail. The consequences of NOT having the information available or being able to access it in a reasonable amount of time are severe. Despite this, few companies have enforceable records retention policies and fewer still have the technology tools needed to support it.

Another problem is keeping e-mail you don’t legally have to keep, as Microsoft found out. The smoking gun e-mail surfaced during the discovery phase of Microsoft’s antitrust trial, even though it was AOL’s e-mail, not Microsoft’s. The Justice Department found one of Gate’s own e-mails with the undying line: “We have to make sure that we don’t allow them to promote Netscape.”

Electronic discovery isn’t just for enterprise corporations. Mid-sized companies frequently experience legal discovery, so if it hasn’t happened to an individual business it almost certainly will. So how can organizations best prepare for electronic discovery? By balancing risk against cost – in essence; it’s establishing policies and capabilities for efficiently accessing secure archives without breaking the bank.

Managing the Archive for Discovery
Companies should begin by establishing and enforcing retention policies, including policies against destroying or altering data potentially relevant to discovery motions. This goes double for destroying or altering data after discovery or litigation starts. Seems obvious, but over the last few years we’ve heard about executives being indicted for deleting messages pointing to insider trading. Not only did the federal investigators recover the deleted messages, they tacked on additional serious charges. Archiving procedures must support evidentiary measures and record retention policies must be in writing and enforced with a method to prove regular enforcement.

This is a tall order and its success depends on a cost-effective technology to support electronic discovery for messaging files. This strategy hinges on two major elements: managing cost and managing risk. A balance between the two yields a cost-effective technology for managing messaging archives and enforcing records retention.

Managing Cost
Managing cost includes reining in storage costs, improving operational efficiency and company productivity, and decreasing retrieval/discovery costs.

Until recently companies were limited to first-generation archiving applications. These applications backed up incremental or full copies of data to backup media. With no way to manage duplicate copies of data and an awkward and time-consuming retrieval process, archiving would complicate discovery procedures and significantly increase cost. In fact, storing e-mail alone often represents over 40% of an organization’s storage costs because of both the sheer volume of e-mails and the multiple copies of messages that are retained.

New archive applications are engineered to compare e-mail messages, record and validate the original, and eliminate duplicates across multiple messaging servers. E-mail archives can now take up a fraction of the storage space previously used, allowing companies to shrink the amount of backup media, backup windows, and retrieval time. These archiving apps are also capable of rapid searches based on a number of parameters, letting organizations quickly retrieve detailed e-mail subsets in response to a discovery demand.

More Stories By Denise Reier

Denise Reier is vice-president of product marketing for messaging solutions in the EMC Software Group at EMC Corporation.

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