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Issue of March 2006 

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The importance of e-mail archival and discovery

E-mail is an essential application but a badly designed archival system for messaging can kill a business. With regulations becoming a fact of life, businesses have to devise the right strategies to ensure that e-mail archival and discovery are done in the right manner, says Manish Bapat

The case for properly archived e-mail is critical if organisations are to stay in business. For example, during a recent prescription drug antitrust case, the plaintiff demanded a discovery search of 30 million pages of e-mail stored on the defendant’s backup tapes for names of particular individuals. The defendant suggested that the plaintiff shoulder the cost of compiling, formatting, searching, eliminating duplicates and retrieving the requested e-mail. Sadly, the defendant lost the argument and the court found that the burdensome and expensive discovery process was the defendant’s problem because of a bad e-mail retrieval process. The defendant paid through the nose.

Court cases routinely approve discovery motions to sift through electronic documents, especially ubiquitous e-mail. The consequences of not having the information available or being able to access it in a reasonable amount of time are severe. Despite this, few companies have enforceable records retention policies and fewer still have the technology tools needed to support it.

More Than Meets The Eye

Another problem is keeping e-mail you don’t legally have to keep, as Microsoft found out. The smoking gun e-mail surfaced during the discovery phase of Microsoft’s antitrust trial, even though it was AOL’s e-mail, not Microsoft’s. The Justice Department found one of Gate’s own e-mails with the undying line: “We have to make sure that we don’t allow them to promote Netscape.”

Electronic discovery isn’t just for enterprise corporations. Mid-sized companies frequently experience legal discovery, so if it hasn’t happened to an individual business it almost certainly will. So how can organisations best prepare for electronic discovery? By balancing risk against cost; in essence, it’s establishing policies and capabilities for efficiently accessing secure archives without breaking the bank.

Managing Archives For Discovery

Companies should begin by establishing and enforcing retention policies, including policies against destroying or altering data potentially relevant to discovery motions. This goes double for destroying or altering data after discovery or litigation starts.

It seems obvious, but over the last few years, we’ve heard about executives being indicted for deleting messages pointing to insider trading. Not only did the federal investigators recover the deleted messages, they tacked on serious additional charges. Archiving procedures must support evidentiary measures and record retention policies must be in writing and enforced, with a method to prove regular enforcement.

This is a tall order and its success depends on a cost-effective technology to support electronic discovery for messaging files. This strategy hinges on two major elements: managing cost and managing risk. A balance between the two yields a cost-effective technology for managing messaging archives and enforcing records retention.

Managing Costs

Managing cost includes reining in storage costs, improving operational efficiency and company productivity, and decreasing retrieval/discovery costs.

Until recently, companies were limited to first-generation archiving applications. These applications backed up incremental or full copies of data to backup media. With no way to manage duplicate copies of data, and an awkward and time-consuming retrieval process, archiving would complicate discovery procedures and significantly increase cost. In fact, storing e-mail alone often represents over 40 percent of an organisation’s storage costs because of both the sheer volume of e-mail and the multiple copies of messages retained.

New archive applications are engineered to compare e-mail messages, record and validate the original, and eliminate duplicates across multiple messaging servers. E-mail archives can now take up a fraction of the storage space previously used, allowing companies to shrink the amount of backup media, backup windows, and retrieval time. These archiving applications are also capable of rapid searches based on a number of parameters, letting organisations quickly retrieve detailed e-mail subsets in response to a discovery demand.

Managing Risk

Managing risk includes keeping a complete archive, enforcing retention policies, proving authenticity and evidentiary weight, and maintaining security and privacy.

Poor archive retrieval systems are extremely time-consuming and costly due to their big-dump approach: archive everything and hope for the best. This results in huge volumes of badly indexed messages, an awkward and labour-intensive retrieval process, and no way to prove the archived media’s integrity.

A next-generation e-mail archive management solution can audit and report on all attempts to access an archive, automatically run retention schedules, as well as capture and index all messaging data, including attachments and instant messages

Next-generation e-mail archive management can audit and report on all archive access and operations, automatically run retention schedules, and capture and index all messaging data, including attachments and IMs. It should also allow for real-time data capture, monitor user information and support privacy by protecting user access.

Real-Life Discovery

Is it worth deploying a next-generation archiving product? Previously, a mid-sized company with 1,500 employees and $350 million in annual revenues had to retain 95 percent of its e-mail. The company fielded three to five discovery requests a month and spent a cool $15,000 to $20,000 per discovery request. The grand total of meeting discovery demands was approximately $1.2 million a year.

After deploying next-generation archiving tools, the company cut that $1.2 million down to just $57,000 a year to fulfil discovery demands. The archiving software speeded up discovery retrievals; decreased storage costs, centralised e-mail archive management, and provided audits and reports to prove that archives met evidentiary requirements.

Being unprepared for electronic discovery can be disastrous, costing thousands of hours of employee labour and millions of dollars in consulting and legal fees. It’s vital that companies develop, audit and enforce electronic discovery policies, and invest in supporting technology. Protecting, auditing, and producing information on demand not only allows organisations to protect themselves during litigation, but also supports strategic business goals by managing critical business information in an efficient and affordable manner.

The author is Business Manager, NAS & CAS, EMC India

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