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Planning for the Consequences of Your E-mail Retention Policies

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Perry Segal raises an important point in a recent post to his excellent E-discovery Insights blog. In a post titled "Baby? Meet Bathwater..." he responds to an article by Stephen Lawson recently published in Computer World that has been widely linked to in the e-discovery blogosphere: "Why IT Should Start Throwing Data Away..." Lawson makes the argument that companies should delete as much data as legal possible to contain storage costs and minimize e-discovery cost and risk.  Segal takes exception to Lawson's recommendations, finding them one-sided, and argues that "[s]ome of that data may exculpate the company and you may really regret deleting it." He concludes his post with the following warning: "Don't be so efficient in your data sweeps that you have a defensible hold, but leave yourself with no line of defense."

While Segal raises an important point, companies will continue to look for ways to greatly limit the amount of data they retain. There are two main views driving this trend. The first is the belief that there are more communications that can hurt the company than can help it. This doesn't mean that companies are usually in the wrong and want to use short retention periods to (in Segal's words) "thwart adversarial e-discovery." There is a legitimate concern that people are far too informal in their electronic communications and say things in e-mail that they would never print and send out on company letterhead.  E-discovery vendors take advantage of this fact and search for phrases that can, in the hands of a good trial lawyer, be spun to look incriminating. E-mail policies that seek to change employee behavior when it comes to how they use and store e-mail simply do not work. So we find companies looking for ways to minimize risk and save employees from themselves. Centralizing management of e-mail, implementing e-mail archiving solutions, preventing employees from saving PST files, and enforcing  short e-mail retention policies are all part of this.

The second view driving the trend towards shorter retention policies is the burdensome cost of e-discovery. While storage costs are an important consideration in retention policies, I don't think they are a major driving force in the trend towards the very short retention periods I'm increasingly seeing companies implement (90 days is becoming common for e-mail). This trend is driven primarily by the ever-increasing burden of responding to e-discovery requests. While lost exculpatory evidence could be a problem in the small minority of large cases, most corporations are more concerned with the locust-swarm of small matters, where the costs of discovery are often all out of proportion to the claimed damages. This is what is making the blood of most corporate executives boil. When looking at the costs of discovery for large firms and the increasing problem of e-discovery trolls, one might have a bit more sympathy for companies seeking to decrease the volume of data that needs to be preserved, searched, reviewed, and produced. As Jason R.  Baron has pointed out, e-discovery does not scale. Even if a company implements top-of-the line early case assessment solutions, at SOME point in the process, you'll still need people to review documents. One of the easiest ways for corporations to control their legal spend is by aggressively lowering document review costs. One way to do this is by limiting the amount of documents that might require review someday.  

Still, Segal is right in that companies need to pause and consider how their efforts to minimize discovery costs and legal risk might have unintended consequences. Companies should not only be looking at how to destroy data, but also how to better capture and preserve valuable information. For example, in an employment discrimination case, it may be difficult for a company to tell its side of the story if all information surrounding the incidents at issue were in e-mail communications that are now destroyed. Inother words, knowledge management is also required. Here is where I believe the heaviest countervailing costs of short retention policies come into play. Generally, programs to implement shorter retention policies are made in conjunction with policies and training to "put information in its proper place." This is promoted as better control of e-discovery and storage costs AND betterknowledge management--sounds great on paper. The problem is that such efforts often ignore how most knowledge workers work and takes away some powerful tools from them.   E-mail reduction efforts provide the most obvious example of this.

E-mail has come a long way from the days when I was using PINE on UNIX and each e-mail felt like a "little hug" (as Merlin Mann described it in his "Inbox Zero " talk). As knowledge workers became overwhelmed by the volume of their e-mail, innovative products were created to help organize, process, and mine e-mail data. These efforts have transformed e-mail systems from mere communication platforms to personalknowledge bases. Anyone, for FREE, can now store large amounts of e-mail that is indexed and easily searchable. We can tag our e-mail, and are no longer limited to foldering messages or saving important information outside our e-mail systems. Increasingly powerful and user-friendly filters and process automation are available to us, often for free (though I kinda miss Procmail). New products for mining your e-mail for social data for otherwise slicing and dicing your communications in clever ways continue to be developed. Much of the value of such powerful tools are lost with short e-mail retention policies.  Instead, we are told we have to determine what information contained in our communications will be important in the future and to save it in "its proper place," which often means OUTSIDE of the e-mail system.  So now, e-mail sucks again. Theknowledge worker has to spend more time processing e-mail and transferring data.

Added to this problem is that many companies are not providing proper knowledge management and collaborative tools to help with the collection of this information. So you have employees saving lots of individual e-mail files on desk tops and in file shares, often poorly organized. I've seen less technical people who save large amounts of e-mail as embedded objects in Word documents. So they are using Word documents instead of e-mail folders or tags to archive and organize their electronic communication for longer term storage. Yeah, THAT'S going to fun at discovery time. Many companies will react with yet more policies.Knowledge workers HATE these restrictions and are clever at working around them. E-mail gets replaced with social networking sites, which raises even greater e-discovery uncertainty. So where does this leave us? Short e-mail retention periods, instant messaging and social network sites prohibited, and hoping people save important information in the proper databases or file shares. Sounds to me like we may be addressing discovery concerns by retreating to the early 1990s. IfSharePoint or other in-house social technologies are implemented, do we start the whole cycle of e-discovery fear and overzealous retention policies? If I were working in such a company, I'd probably tell every one to telephone me and go back to keeping notes in Mole Skin notebooks and replace my smart phone with a Hipster PDA .

I'm not against short document retention policies. I do worry, however, that many companies are letting fear of litigation control how they do business. Many companies don't give enough thought to the potential costs of lost productivity caused by not saving information, having to move or recreate information, and having frustrated employees, many of whom are going to find ways to work around your policies and technological controls that will lead to e-discovery headaches they haven't planned for.

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This page contains a single entry by Paul C. Easton published on May 9, 2009 7:02 PM.

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