Manual self preservation of email is not valid retention policy.
Lawyers are worried about saving emails in an archive since they are discoverable records. Nearly every legal action includes an order to produce relevant emails. The cost of email production can be enormous.
When your organization is aware that “there is good potential for a legal action” (even before they have been served with a subpoena) you must take formal actions to preserve any records that may be called as evidence or asked for in discovery. This includes notifying people not to destroy email records and tracking responses to the notices (litigation hold).
Your organization’s users believe they need to save every email they ever sent or received forever (just in case).
The Federal Rules for Civil Procedure mandate that attorneys “Meet and Confer” to establish the “what do you have and where is it” for all electronic records expected to be searched.
The IT team has to maintain backups and is tasked with making most ediscovery searches – which is time consuming, potentially expensive, and has a large potential for errors. IT is overwhelmed with storage costs, backups, and limited budgets.
The Lawyer’s Perspective
We want less: Many legal staffs want the least amount of electronic information. They may believe that end users can handle the custodial duty of “knowing” what important documents to save and discard. It certainly is cheaper to delete everything (how many users actually do this?) until notice of the need for a litigation hold and then retrieve and review information once an e-discovery request has commenced. Often users delete important messages before they are noticed of the legal hold. Ultimately, a judge will decide the time in history when litigation could have been projected and will expect critical electronic documents be protected and retrievable from that point.
Trigger point, the indication for Litigation: Lawyers know that you must begin keeping information when you have first indication of possible litigation, as FRCP regulation requires. In a perfect world, it would be easy to pinpoint a trigger point in which all proceeding information and electronic data could be classified, saved and documented for use in potential litigation. But, what one side may determine their trigger point is may be months or even years later than an opposing side. The judge will have the final say in measuring when a foreseeable issue could be determined, that could mean locating and retrieving documents from 9 years ago.
Request then Retrieve: Lawyers view of the retrieval process is simple as long as a legitimate policy and practice is in place and followed. Why is it so hard to get all the emails when you have all the backup tapes?
Immediate gratification: Once a request is given and a litigation hold in place, the search and discovery of necessary documents is placed upon IT. Unfortunately, “all emails” or “messages with these keywords” can be interpreted in many ways by IT personnel. Lawyers usually believe they can bully IT to wave their magic wands and make data magically appear.
Save Everything: Legal teams want to ensure that when a hold is activated, everything is saved. They would rather be prepared than caught off guard in court. Using the email server as a protected repository is not possible. It’s too easy to delete or alter messages. If you used the standard journaling of messages, you would be holding all the critical messages. No need to notice any employee.
See how email archiving and eDiscovery can benefit you!