Electronic Data Records Law | How to Win E-Discovery

Email Recovery | Network Back-up

E-mail Database Search and Forensics

Archival | What is a Subpoena?

As litigation and other requests for e-mail from backup tapes grow more frequent, an enterprise may be wise to restore, consolidate and archive all of its old e-mail held in backup.

Historically organizations did not think of e-mail as an asset worthy of preservation.  They did not archive it, though copies would end up in network backup.  

But experience has taught that e-mail evidence can be critical to defense of a lawsuit or enforcement of a contract.  Alternatively its disclosure might be required under a subpoena (see definition below), a court order, an administrative summons, an IRS tax audit or a freedom of information act request (FOIA).  Further, e-mail might be needed in an investigation (led internally or by outside criminal prosecutors) of a bribe, a kickback, an overcharge, tax evasion or a embezzlement of money, or it might be needed for an audit of alleged misallocation of funds. 

Archival

Greg Smith of Messaging Architects observes that repeated requests for e-mails from backup can warrant a change of thinking in the IT department. “While most backup software deals very efficiently with individual electronic records, it cannot provide the same level of access to email. This is because enterprise email exists as a record within a database (such as for Groupwise or Microsoft Exchange).  The database must be restored in its entirety and searched in its entirety in order to ascertain the contents of the database. With database sizes exceeding 100GB and scores if not hundreds of tapes, the cost to restore and search the tapes can be considerable. Recovering records for selective users and dates may satisfy the current discovery requirement, but with each successive lawsuit, or changes in discovery parameters for an existing lawsuit, restoration from tape can become a recurring financial liability.”

Greg continues, “The practical solution is to remove the information from tape permanently and place it in an electronic records format where information can be retained and managed as individual records and not conglomerates of information.  In such a format, individual email records can be sorted by user or date.”

Restored records can be archived in an open (non-proprietary) format, such as XML, which enables searchers to tap an ever-expanding array of search and forensics tools.  XML may or may not qualify as "native format" as that term is sometimes used in court decisions, though XML may be a more useful format than whatever the native format was.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, experts in e-discovery and consultants in e-mail investigations.

Post Script  What is a subpoena?  A subpoena is a legal demand that someone turn over information or evidence. Commonly the laws of litigation enable a party to subpoena other parties for records or other evidence. Sometimes the law also invests the power to subpoena in an official who conducts investigations, such as a government auditor or an inspector general. If a party abuses the power to subpoena, by demanding irrelevant records or by issuing a demand with no regard for the cost of compliance, a court may sanction the issuer of the subpoena.

Recordkeeping for Social Networking Managers

Social Networks for Official, Commercial & Employment Transactions

By law, employers generally need to keep records of employment decisions.  So when the boss conveys a pink slip by way of Facebook, the employer needs a legal record of it.

What?  Fire someone by Facebook . . . a posting on a wall?  Would a manager do that?  Yes.  A spa in Canada (British Columbia) used Facebook to notify Crystal Bell of her job termination.

The history of electronic messaging tells a story about business records.  As each new form of message comes along, we initially doubt you can conduct business with such a flimsy thing.  Fax as a medium for transacting serious business?  No way, people thought in the early 1980s.  But as time passed –- and as court cases enforced fax contracts -- we grew more comfortable with fax as a business tool.  Today, fax is considered a responsible, even conservative medium for transmitting signed agreements and binding business records. 

Then, when electronic mail came into the workplace, conventional wisdom dismissed it.  Convention said e-mail was not a business record, said it could not (conveniently) be authenticated with a signature, and said it should be deleted quickly like so much water-cooler chitchat.  But naturally business people embraced e-mail as a tool for making obligations and delegating authority.  Today we see the law giving enterprises growing reason to store e-mail as business records.

I predict the same process will unfold for collaborative (Web 2.0 and social network) media like instant message, Facebook, Twitter and Myspace.  Old-fashioned folks will try to ban these technologies as methods for conducting important business.  They will, initially, ignore them as records to be kept.

But the outcome of the story is inevitable.  Busy people (like the boss in BC) will use the new channels to hire, fire, negotiate, agree and so on.

The managers of records need to plan for capturing the records of Web 2.0.  Those records can become the subject of a subpoena, an IRS taxpayer audit, an administrative summons or an internal investigation or the source of exculpatory evidence in defense of lawsuits.