This is the second of a three part series on electronic archiving. The first part was: Do You Really Need to Archive Email ? The third part is: Third-Party SaaS Archiving vs. Microsoft Exchange 2010. For more information on the benefits of SaaS for electronic archiving, click here.
Archive everything? Nothing? Email only? Forever? 30-days?
What Needs To Be Archived?
For good or ill, email is how we communicate and exchange information. It is that communication stream that must be preserved to meet an organization’s compliance, e-discovery and legal holds. How long and whose email? That’s a question for legal. However, with a flat rate per user for unlimited archive storage it may be easier just to archive it all.
- Electronic files
While documents created and stored in a file system are subject to discovery, they relate to email since many are used as attachments. It is in this context that a document often gains meaning. There are countless examples of document attachments being used on either side of legal actions. It is for this reason that any archiving system must include not just the email but the attachments as well.
- SharePoint, Sametime, Quickr and other data stored in collaboration systems
Archiving SharePoint can overcome some reported limitations (lack of replication and access to the SQL database metadata information). Archives of such systems, can give rapid access to data more rapidly than backup and restoration of SQL databases.
- Instant messaging and web conference conversations
Instant messaging has moved beyond being a consumer-focused chat tool. In a recent survey, 20% of businesses indicated they needed to archive instant messaging now and another 28% said they would need to do so within 12 months. As web conferencing has become more widely used, they often contain business records that need to be preserved as well.
- Other data types
Any data that contains business records or communication can be called for in an e-discovery request. The data that are most difficult to produce are those that are not centrally stored. Personal Outlook .PST files are both a blessing and a curse in this regard. While they do relieve storage pressure on the email server, they are outside the easy access of the IT department. This is especially true when they are spread across a geographically dispersed area and employee’s homes. Further, .PST files are notorious for become corrupted.
So, What Happens If We Don’t Archive?
Could be, nothing. However if you take that attitude, you wouldn’t buy insurance, lock your doors or backup your data. Litigation involving issues that require the production of electronic evidence can affect organizations of any size. Both small and large companies have gone out of business due the costs of a law suit.
E-Discovery Can Become a Nightmare
Organizations with poor data retention policies can face severe consequences. Some examples:
- Qualcomm v. Broadcom 3:05-cv-01958, U.S. District Court for Southern California
This patent case illustrates that plaintiffs can lose of they fail to produce evidence in a timely manner. Qualcomm’s attorneys failed to hand over data including 200,000 pages of email and other correspondence until four months after the trial. The judge held that several Qualcomm patents should be rendered invalid. Qualcomm was ordered to pay all of Broadcom’s $10 million legal fees.
- Zubalake v. USB Warburg, 02-cv-1243, U.S. District Court for Southern District of New York
USB was required, at its own expense, to produce all electronic materials relevant to this sexual discrimination suit. During the e-discovery process, USB found that certain backup tapes were missing an that emails had been deleted. The court also found that USB had failed to comply with its own retention policies. USB was ordered to pay the plaintiff $29.3 million.
Legal Holds Are a Key Part of E-Discovery
If your organization is not able to place a complete or verifiable hold on data when required, you can encounter a variety of legal consequences, ranging from embarrassment to serious legal sanctions or heavy fines. Inability to produce evidence can be construed as evidence that a party to a legal action has something to hide. You cannot depend on employees to do this manually.
Backups Are Not An Archive
Making backups is best practices and must be used in case of a need to restore quickly after a hardware failure or some other disruptive event. However, they are not an effective archive solution. Two reasons:
- Answering an e-discovery request using backups can be extremely expensive and time-consuming. Further, backups can be overwritten and tapes are notorious for failure.
- Backups cannot preserver information created and destroyed between backups. This can lead to failure to comply with statutory retention obligation and legal requirements.
At the low cost of unlimited archiving available today, economics plays a back seat in the decision making process today. Electronic archiving of email, Instant Message logs and Bloomberg data is now routine. The last question in our series is whether to use a third-party email archive or use the built-in Exchange 2010 email archive? This is the topics of our next post.
If you want more information, contact us via email or phone at 770-603-0300.