Lawdragon: Your source for legal news and lawyer information


	Login \| Register

FEATURED LISTING

Richard Cohn
Aitken • Aitken • Cohn
Santa Ana, CA

Learn about featured listings

Lawdragon Inc.

600 Wilshire Blvd.
Suite 870
Los Angeles, CA 90017
(213) 223-2420 phone
(213) 223-2439 fax

Litigation Drives E-Mail Archiving

Posted: April 16, 2007

By R. JEFFREY GRAHAM

Every dawn brings a new approach to e-mail archiving, yet rare is the organization that has settled on a system it likes. Why are we seeing an increasing number of options? Why do those options continue to leave people disgruntled?

The answer to the first question is demand. Demand is growing for quick, reliable and thorough access to e-mail messages and their attachments. Litigation fuels a substantial part of the demand. Lawyers who handle lawsuits must dig for information. Traditionally they have dug in three places. They extracted information from peoples’ heads, most notably by conducting interviews, taking statements and deposing witnesses. They examined tangible objects: Was the guardrail mangled? Did the glove fit? Finally, they went to paper, because paper was where people recorded their contemporaneous thoughts, their after-the-fact impressions and their transactions.

Today, lawyers seeking records of those thoughts, impressions and transactions had better be looking at electronically stored information (ESI). That is, they should be conducting electronic discovery. The more progressive lawyers already do just that, and according to most reports, about 80 percent of the ESI those lawyers handle consists of e-mail messages and attachments.

More farsighted lawyers have begun to appreciate the value of looking at ESI early in the process. By examining ESI as soon as possible, the attorneys can do a better job of determining what data they need to preserve, process and potentially produce to the other side. By assessing the data early, they also get a head start on understanding their cases, the cases strengths and their weaknesses.

In short order many more lawyers may be demanding e-mail messages, attachments and other forms of electronically stored information. Since the passing of amendments to the Federal Rules of Civil Procedure on Dec. 1, 2006, every lawyer handling cases in federal courts has been laboring under a substantially revised set of procedures. As the name suggests, these rules tell lawyers what they must follow when handling civil cases in federal courts. Until now the rules have referred to electronic discovery only in the most oblique of fashions. The revised rules place electronic discovery front and center. Lawyers will be required to raise the issue in their initial conferences. Early in their handling of cases they will have to make a plethora of prompt electronic discovery decisions, including what ESI to preserve, how to search the data and in what form or forms to produce that information to the other side.

Litigation is not the only area driving demand. Regulatory agencies, for example, want e-mail and other ESI from companies, they want lots of it, and they want it fast. For those conducting internal investigations, quick, reliable and thorough access to e-mail and other electronic information can make the difference between success and frustration.

Frustrations with Archiving Systems
Now to the second question: Why are consumers of archiving systems complaining? The responses seem to fall into six categories: (1) The system did not archive a broad enough range of data; (2) the system did not offer strong enough searching capabilities; (3) the system was not scalable; (4) the system was too disruptive, (5) the system did not archive the data it was supposed to archive; and (6) the system could not be used to assist with litigation and other holds.

A key factor to look at when considering archiving systems is the scope of data the system can archive. The more types of data the system can archive, the greater the potential value of the system. If a company installs a system that only stores incoming and outgoing messages and their attachments, come litigation the company will face the prospect of having to search for additional information about e-mail messages and related materials on local hard drives, e-mail servers and shared drives. To increase the return on investment, look for systems capable of archiving changes to items (deletions, moves to different folders, etc.), folders, calendar entries, contacts, tasks, notes and journal entries.

Unless an archiving system offers sound searching capabilities, it will be of limited value. Look for a system that allows you to set the scope of your searches, as well as one that permits you to save searches, reuse them and combine them to create more nuanced searches. The broader the range of data you can search, the more thorough you can be in your quest for relevant data and the less likely it will be that you have to search other systems. Ask whether the system can search the items mentioned in the previous paragraph, but determine as well whether it can search conversation threads and item histories. The ability to log who searched what when and then to search that information is also important.

Scalability is a fundamental issue. For an archiving system to provide value, it must be able to handle the volume of e-mail and related materials generated and received by a corporation. If it cannot do this, none of the system’s functions and features, no matter how alluring, will be of value.

Overly disruptive archiving systems tend not to get used or at least are not used for long. Look at the technology deployed: Does it generate excessive traffic that slows the company’s networks? Does it call for installation of software on end-user machines that degrades the performance of those machines? Does it require so much input from end users — cataloging information in accordance with records retention policies, for example — that those users find ways to circumvent the system entirely?

In the past, some archiving systems have failed to archive all the data they said they did. There have been problems, for example, with attachments not getting to the archive. If you are evaluating systems, it is best to test the systems to determine whether the systems function as advertised.

Finally, evaluate how well you can integrate the archiving system into whatever records management and litigation hold processes you have in place or intend to implement.

A number of vendors offer products and services in this area. One such vendor is Mimosa Systems, which recently announced the ability to search public archive files, PST archives, search by retention hold and more. The company’s NearPoint product provides a platform to quickly find retained e-mail content over any period of time or a very specific period of time. For a firm involved in electronic discovery, technologies such as these make search faster and more accurate, saving attorneys the hassle of reviewing duplicate or irrelevant data and the need to manually dig for e-mail data not available through conventional search systems.

Practicing law since 1996, R. Jeffrey Graham is the principal of Law Offices of R. Jeffrey Graham. Graham performs discovery related work on class action cases involving the insurance and tobacco industries. He has earned favorable jury verdicts in cases handled through trial and is admitted to appear before all California courts and the U.S. District Court, Central District of California.

Page 1 of 1 pages for this article

PRESS RELEASES

Information displayed on Lawdragon is for general informational purposes only, the information is not legal advice and is not an endorsement or recommendation of any law firm, judge, or attorney. Lawdragon does not represent or warrant that the listings, evaluations, or other information found on Lawdragon will be correct, accurate, timely, or otherwise reliable. Do not act upon information found on Lawdragon as a replacement for legal advice provided by a professional attorney in good standing and licensed to practice in your jurisdiction. By visiting Lawdragon.com, you agree to these Terms of Use. Page served in 0.2895 seconds.