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  • Attorney Benjamin Wright is an advisor to Messaging Architects, specialists in email compliance and risk management controls and services. He is the author of numerous books on technology law, including The Law of Electronic Commerce (Aspen Publishers) and Business Law and Computer Security (SANS). He often serves as featured speaker at industry conferences and professional meetings, and he teaches data security and e-discovery law at the SANS Institute. Mr. Wright recently delivered SANS Onsite to the e-discovery team of a major corporation. His telephone is 1.214.403.6642. His e-mail is ben_wright at compuserve dot com (put "BLOG" in subject line to distinguish yourself from spam). Mr. Wright graduated from Georgetown University Law Center 1984.

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  • No public statement by Mr. Wright (blog, comment, book, article, video, speech) is legal advice for any particular situation. If you need legal advice, you should consult your lawyer.

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October 27, 2008

Electronic Mail as Institutional Memory

Archives Promote the Mission of the Enterprise

As the world changes (it's changing a lot these days), an organization needs memory. Whether the organization be a school, a hospital, a government agency, or a for-profit corporation, institutional memory helps fulfill the firm's mission.

A relatively new instrument for cultivating that memory is the archival of e-mail. Email archives form a rich, time-stamped diary of who did what, why and how. They explain the thinking when new equipment was installed. They remind who contributed to the design of a new product.

Employees come and go. CEOs come and go. But institutions persist. If they destroy the e-mail of their decision-makers, they undermine their own productivity. And they undermine accountability.

A decade ago . . . 

Timothy J. McGovern and Helen W. Samuels recognized the accountability issue by envisioning this example in a university setting: "In January 1997, your chief financial officer sent an important budget planning e-mail message to all senior officers outlining required reductions in expenditures. Attached to each customized message were that morning's real-time budget projections generated from your financial database, projections that change daily. When one of the deans is reprimanded in November 1998 for failing to carry out these reductions, he questions the validity of the financial projections originally provided. Your financial system is unable to reconstruct the data as originally transmitted." 

Even when an institution needs to close, email archives are invaluable. As 158-year-old Lehman Brothers struggles to resolve its assets, obligations and trading positions in bankruptcy, e-mail archives play a central role. An administrator for the dying investment bank expects to be "trawling through historical agreements, e-mails and electronic documents for information to eke out additional value." (Sakoui, "Picking through Lehman’s remains," Financial Times, October 27, 2008.) Email was, for example, instrumental in the over-the-counter derivatives market in which Lehman participated as a financial institution.  E-mail is a common method for effecting "novation" (substitution of one party for another) in the derivatives market.  Savvy players uses novation to jetison Lehman as a counterparty shortly before it declared bankruptcy.

Email records can be invaluable in sorting out relationships, commitments and breaches of confidentiality among hedge funds and financial analysts.

--Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, expert on e-mail investigations.

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