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Why Resist Email Archiving

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A simple set of questions will tell if you need to archive your email.

  1. Does your organization sends and stores business records and communications electronically?
  2. Does your organization need to preserve electronic records for a long period of time?
  3. Do you need ready access to this content?
  4. Is email storage a problem?

If the answer is “Yes” to any of these (and it probably is for every commercial, governmental and educational organization), you need an archiving system that can preserve and make this data readily available as needed. So, why do organization resist email archiving? Every organization has it’s own answer but, here are the most common.

Not in the budget

Wouldn’t it be great if all problems could be scheduled and the cleanup/effects budgeted? What an organization is really saying is that they are rolling the dice that some legal issue or regulator won’t come knocking on their door. The cost of complying with a legal hold or e-discovery request will probably far exceed the cost of years of email archiving. In Petcou v. C.H. Robinson Worldwide, Inc. the cost of recovering two years of email for a single employees was reported at $79,000 without email archiving. The cost of most 3rd party SaaS email archiving is just based on the number of users’ mail being stored not on the amount of space required to store the data.

What these organizations further forget is that having email archiving will give the organization a chance to review the details of a potential issue when it first come up. That can influence a decision to settle early and reduce potential cost or to go to court.

What is in many organizations’ budget is the demand for larger and larger data storage and backup systems for the email data store growth.

We’re not in a regulated industry

Really? Which industry? Does anyone send accounting or personnel information or queries via email? Does anyone send proposals, invoices, or agreements electronically? Do employees gossip or talk about business or non-business topics via the business email or instant message system or workstations? If the answer to any of these is “Yes”, then while you may not be in a specifically regulated industry, all those activities have been requested via e-discovery. The FRPC revisions of 2006 are clear on both which data are to be archived and how as well as that corporate officers are responsible for seeing that it is managed.

We have backups that serve as our archive

Backups are not archives. A backup’s sole function is to provide for restoration of data in the case of the failure of the primary data store. As we said in a previous post, backups fail as archives for two primary 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.

What’s the cost of delay?

Just like your middle-school teacher, judges are not interested in your “My dog ate my homework.” excuse for not having an email archive system. Inadequate archive systems can cause massive financial and business interruptions. 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.

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.

If you want more information, contact us via email or phone at 770-603-0300.



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