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Get Expert Legal Advice on Email Risk Management and Regulatory Compliance

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By Messaging Architects

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Posted: 12 Sep 2006
 

Messaging Architects Presents: Email Risk Management and Business Driven Email Retention Policies As messaging and collaboration systems become more complex and regulatory requirements grow in scope, there is frustration over the lack of clear guidance around the topic of Risk Management for Enterprise Email. To respond to this pressing need, Messaging Architects is offering a series of articles to crucial issues of email risk management and policy-based email retention. We hope to provide guidance in your goal towards legal and regulatory compliance and corporate IT governance.

Email Record Retention 101

Early destruction of email is increasingly dangerous, as evidenced by recent lawsuits and legislation. The conventional thinking in corporate records management is that lots of documents, especially email records, need to be purged and shredded. It is believed that if records are systematically purged, bad documents from the past will not come to light and embarrass the corporation during litigation. For this reason, corporations commonly have formal record retention policies that mandate the destruction of different classes of documents if they are not strictly required by law to be preserved.

The conventional thinking is faring poorly in modern courtrooms, especially when early destruction of email is involved. Electronic mail has become a prime source of evidence and controversy in modern litigation. Because it is much easier to distribute than paper, finding and destroying all the email copies is much harder. Email can surprise people who thought they destroyed it.

Hasty destruction, or attempted destruction, of email raises suspicions in the legal system. Enterprises have suffered in court under doctrines, such as spoliation and obstruction of justice. Guided by the belief that enterprises should suspend email destruction during litigation, courts have penalized them for purging email records, even though these organizations thought they were only acting in accordance with standard record retention policies.

Some enterprises have tried to ensure the preservation of important emails, while eliminating the rest, by telling executives to print and retain only the important records. But the print-and-retain policy has not won much approval in court because executives are not talented at printing and retaining.

Enterprises should re-examine their record destruction policies. Policies driven by the desire to expunge records so they will be unavailable for future potential litigation should change. Courts can sense this, especially when a systematic destruction program applies to relatively young records, and can be very unforgiving with respect to the sanctions they issue.

A better policy is to shift to a bias in favor for longer, more comprehensive retention of email. One of the historical objections to a policy of keeping extensive email records used to be that the enterprise would be forced to expend vast resources for discovery in the event of litigation. In the Information Age, wise organizations should plan to invest into technologies that would allow them to systematically retain and access archived email. Electronic files should not be destroyed as a litigation strategy. Moreover, as we will discuss in the subsequent article, enterprises should normally be able to automatically discard records when their retention thresholds have been reached.

Email Compliance Video Series

For in-depth knowledge on the legal aspects on Electronic Mail Records Management, consult the 4-part video series produced by Messaging Architects Media and narrated by leading technology expert Ben Wright. To order the Email Compliance Video Series, visit:
http://www.messagingarchitects.com/company.cfm?doc_id=1194&cid=82006


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