Companies Remain Unprepared for Litigation
Section 37(f) of the revised FRCP allows for the destruction of email and other electronic documents, as long as the deletion is part of a standard retention policy. Despite the clear requirements, the Email Archiving Practices Survey showed that most organizations are not prepared:
- 53 percent of companies lack a policy to govern email retention and deletion.
- 67 percent of companies allow individual end users to determine how long messages are kept by the company.
- 66 percent of companies do not have the email archiving technology required to manage email retention, litigation holds and e-Discovery.
In the event of litigation, these companies would likely be required to search back-up tapes, desktop files and legacy systems to find information that was deleted in the absence of a good-faith retention policy. Manual e-Discovery searches can cost hundreds of thousands or even millions of dollars. In addition, these companies risk being sanctioned for the illegal destruction of evidence, including courtroom penalties that can cost a company an important legal case on process grounds.
"The survey reveals serious legal issues for organizations that are either ignoring the new federal mandates for compliance and e-Discovery or are clearly not well educated on how to meet the technical requirements," said Michael Osterman, CEO of Osterman Research. "Many recent court cases have shown that companies are expected to show a clear retention policy. The time is now for all companies to set and manage retention policies for their entire organization."
No Consensus on Retention Strategy
While the revised FRCP provide a strong incentive for potential litigants to put email retention policies in place, they do not provide any guidance on the contents of the actual policies. As a result, companies have taken vastly different approaches to email retention:
- 47 percent of companies have implemented email retention policies.
- 36 percent of companies keep all messages for the duration of their policy while 64 percent vary retention policies based on a pre-defined criteria. Within this group, 50 percent vary retention policies by user, department or business unit and 50 percent set policies by message content.
- The average retention period varies greatly by company. 21 percent of companies keep messages, on average, for more than 5-years; 43 percent keep messages for 1 to 5-years; 36 percent of companies keep messages for less than 1-year.
- 77 percent of companies have at least one retention policy that dictates that messages are kept more than 5 years. 36 percent have a policy that dictates that some messages are kept for longer than 10-years.
Retention strategies typically reflect an individual corporation's philosophy around email and litigation. Companies that view email as a strategic asset and who value the context provided by email in litigation keep email messages for many years. Other companies view email as a necessary evil and who worry about "smoking guns" tend to delete messages as quickly as possible.
2008 Will Be the Year of Email Management
Although most companies are not prepared to meet the new FRCP requirements, the survey results show that 64 percent of companies plan to implement new email retention policies over the next 12 months. One of the reasons that companies have been slow to comply with the new requirements is that there are typically many stakeholders involved in setting retention policies. According to the survey:
- Legal typically drives the development of retention policies. The legal team is involved in setting policies at 81 percent of companies.
- Other stakeholders that are typically involved include IT (72 percent of companies) and compliance (65 percent of companies).
- Business stakeholders play a less important role in the development of retention policies. Only 48 percent of companies included business managers in the process and only 28 percent included records managers in the development of email retention policies.
