09.01.2010 eDiscovery & Information Governance - Do You Know Where Your Email Is?
If you have ever been involved in litigation, you know that the process of finding, collecting, reviewing and producing the evidence that supports your case is often difficult, lengthy and expensive. As we have transitioned from a primarily paper to an electronic world, the costs of discovery can sometimes threaten to overwhelm all but the largest disputes. One way to minimize these costs is by properly governing your information.

Effective information governance means establishing enterprise-wide policies and procedures for the creation, use and retention of information. If implementing a thorough information governance plan seems daunting, a good first step is to start with your email, specifically, where your email is located. (Governing how to use email effectively and how to decrease the volume of email being saved will be addressed in future articles.) Waiting until you are in the middle of a lawsuit to ferret out the hidden caches where your employees are saving and storing email is often a contributing factor to increased litigation costs.

So, where is your email? The answer to that seemingly simple question is often anything but simple. Email is voluminous and ubiquitous. You send it, receive it, and forward it; you attach documents to it, file it, archive it and even print it. When you finally delete it, you usually don’t really delete it but merely move it from one folder -- either your “In Box” or “Sent Items” -- to another, namely, your “Deleted Items” folder, where it can remain forever. You can move email to personal folders (often referred to as PSTs or OSTs), which can be located on email servers, file servers, the hard drives of desktops or laptops, or, as is often the case, all of the above. Email can reside on your BlackBerrys® and smart phones, on your personal computers, and in your personal email accounts. You can store it on thumb drives, CDs and other portable media, and of course, on paper. And don’t forget that it exists on back-up tapes, too!

The more places you save and store email, the more costly the discovery process can be. So is there any way to eliminate some of the nooks and crannies where email can be stored? Absolutely! Your IT department can restrict user access to certain locations so that employees are no longer able to download or copy email to the local drive of their computer or to external media such as CDs and thumb drives. You can require employees who use BlackBerrys® or smart phones to conduct company business, or who use personal computers to work remotely, to regularly sync those devices with the appropriate server. Regular syncing will ensure that email residing on personal hardware is duplicated on the server and, thus, unnecessary to collect for most discovery purposes. Yet another option to consider is prohibiting employees from using personal email accounts to conduct company business, although this option can be difficult, if not impossible, to enforce. Moreover, unless you can ensure that every employee abides by this policy, you may not make much headway in minimizing your discovery costs.

These solutions, however, only address external email locations. There are still plenty of places to save and store email within the confines of your company’s IT infrastructure, sometimes without even knowing that you are doing so. For example, as mentioned above, when you “delete” an email, it just moves to a new folder. In order to really delete it, you must “empty” that folder. (Even items that you really delete often can be retrieved if one spends enough money and uses the right tools.) Your IT department can set up automatic procedures that purge employees’ “Deleted Items” and “Sent Items” folders on a regular basis to preclude those folders from turning into the electronic equivalent of a storage warehouse. Your IT department also can restrict users’ ability to create PSTs completely, or, at the very least, can require users to locate those folders on specific drives identified by IT, which will make them easier to find.

In order to govern your company’s information effectively, you must know where that information is. While the relatively easy steps discussed above won’t decrease the volume of email that your company maintains, they will help you narrow the scope of where your email is located, which in turn will help minimize your discovery costs should you become involved in litigation.

Stay tuned for future articles addressing how to effectively govern email use and how to decrease the overall volume of email being saved, as well as other tips relating to information governance and updates in eDiscovery law.

For more information about this topic, please contact the author at 804.420.6444 or or any member of the firm's Financial Services & Real Estate Team.
Williams Mullen Financial Services & Real Estate Quarterly Newsletter. Copyright 2010. Williams Mullen.
Editorial inquiries should be directed to John M. Mercer, 804.420.6443 or . The Williams Mullen Financial Services & Real Estate Quarterly Newsletter is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.