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Taking the cost and risk out of the inbox

Jeremy Barnes | April 11, 2011
Why the unchecked growth of electronically stored information is unsustainable.

Because e-mail just keeps on coming, one dreams of stemming the flow. Despite its unparalleled corporate value - facilitating business across geographies and time zones in ways once simply impossible - the mismanagement of e-mail has created overwhelming problems and unsustainable practices in companies of all sizes. Still, we cannot function without it.

The massive volume of electronically stored information, including e-mail, creates increasingly complex and daunting challenges. Organisations invariably come to terms with a disheartening reality:

Substantial corporate costs and risks, particularly those incurred throughout the e-discovery process, directly correlate to the volume of content retained. Indeed, given the process of hiring outside service providers to identify and collect content, and the billable fees incurred by lawyers to review information for relevance and privilege, it makes sense that every expense is intensified by the volume of content involved.

Unfortunately, when most companies begin to evaluate their legal situation, they realise they've wound up on the horns of an e-discovery dilemma. Companies must secure and retain information or face fines and sanctions associated with the destruction of electronic evidence. Saving too much information, however, drives up costs.

This is why many companies eventually endeavour to dispose of unnecessary electronic information - that is, to determine what content should or must be kept - and aggressively purge everything else. It becomes a balancing act of risk tolerance: What do we believe we can responsibly dispose of, and how do we ensure the rest is kept appropriately?

Not all e-mail is created equal

Common sense helps us appreciate the cost and risk of adopting a "keep everything" mentality. And fortunately, we are not legally obliged to. The Federal Rules of Civil Procedure in the United States, in particular Rule 37(E), have clearly established such a "safe harbour":

Failure to Provide Electronically Stored Information:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Many organisations interpret this guidance to mean they may dispose of unimportant information, so long as they have done so in a documented and systematic manner. Legal provisions like these allow us to feel confident in practices that routinely purge such transitory e-mail messages. However, in order to implement such practices responsibly, companies are expected to:

  • Maintain policies that clearly describe their practices, and be able to demonstrate that IT systems function accordingly
  • Have the capacity to safeguard any potentially relevant information, i.e., to disable such practices at a moment's notice

Many companies generally adopt a framework that identifies three major "categories" of e-mail: transitory, intended records, and business value.

  • Transitory - Many of the messages exchanged on a daily basis bear no long-term value to the company, and some are not related to business activities at all. Out-of-office replies, reminders to attend social gatherings, brief thank-you messages, and the like clutter inboxes and create noise that makes it difficult to find and work with the information that actually has value.
  • Intended records - In many industries, users send and receive messages that the organisation mandates should be captured and retained in accordance with policy, such as discussions around potential acquisitions and contract-related correspondence. Activities such as these can generate important and sensitive content that companies might be later compelled to produce, which means that messages of this nature demand to be identified as intended records of the company or the firm and retained in accordance with policy.
  • Business value - Finally, some of the messages sent and received as employees are not formal records of the company, but serve some purpose to us in doing our daily jobs. These e-mail messages can't be considered transitory because they do have business value, and we need them to do our jobs optimally.

 

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