In Case You Missed It (April 21 – April 27, 2008)

News stories from the week of April 21, 2008 that piqued our interest:

GAO Highlights Government E-mail Gaps

Byte and Switch, April 24, 2008

For any of us who’ve felt guilty for not properly storing electronic documents, we shouldn’t worry - we’re not the only ones. Even government officials in Washington are finding it difficult to follow the rules of preservation. According to a Government Accountability Office (GAO) report that studied Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), the Federal Trade Commission and the Department of Housing and Urban Development (HUD), not all agencies are living up to e-mail retention policies.

“For about half of the senior officials, e-mail records were not being appropriately identified and preserved,” stated the report, highlighting the lack of effective “recordkeeping” systems capable of classifying emails for swift retrieval.

Interestingly enough, the study also found that many of the officials studied actually print out their emails and store them in physical folders. GAO officials cringed at this knowledge that both physical and electronic copies of e-mails are floating around, creating unnecessary risks of data theft.

By no means do these study results give you reason to procrastinate establishing email storage policies, but you can rest assured that you are not the only one trying to deal with it. We suggest that you do what you can to prepare yourself.

Will Keeping Old E-mail Put You at Risk?

NetworkWorld, April 24, 2008

While we’ve written about various studies, surveys and expert sources that complain about the lack of electronically storied information (ESI), we’ve got some good news to offer. Historically, many individuals believed that deleting old, irrelevant e-mails and instant messages is a much safer course of action compared to storing them. While this is occasionally true, it’s best to store them instead, just in case you’re called into court. As the writer of this article illustrates, it would be unfortunate to walk into court not having a document when all the other parties in the room do.

It seems that organizations are beginning to agree with this analogy. According to a recently published survey, 32 percent of organizations in North America believe that preserving all e-mail content for long periods is the least risky option, while 10 percent believe that deleting all content poses the least risk. In 2007, 15 percent of respondents felt that deleting all e-mail was the least risky option, while a study conducted in 2006 found this figure was 23 percent.

We’re glad to see that the number of those deleting documents is decreasing. It’s encouraging to know that ESI storage solutions are being put in place and that organizations are supporting the idea of saving, rather than trashing.

A Case of ESI in Lost E-Mail Attachments

New York Law Journal, April 25, 2008

This article discusses three decisions made by the U.S. District Court for the Northern District of New York, the first of which is of interest to this blog. In the case of PSEG Power New York Inc. v. Alberici Constructors Inc., PSEG provided emails both in electronic and paper form. Assuming providing both types would help their case, PSEG actually failed to produce the attachments that went along with some of the e-mails. While some of the attachments were sporadically included in the hard copies, none of them were included in the electronic ones due to a technical error in the collection process.

Alberici pushed back, arguing that PSEG should try again and attempt to produce electronic evidence in its entirety, attachments and all. PSEG declined, due to the cost and obligation of reproducing the evidence. In the end, the judge settled the dispute by forcing PSEG to reproduce the e-mails, in their entirety, and bear the cost in doing so.

“According to the court, although Rule 34 of the Federal Rules of Civil Procedure absolves a party from producing electronically stored information in more than one form, the party must still produce the information as it is kept in the usual course of business or organize it to correspond to the discovery requests. Neither before the 2006 amendments to the federal rules nor now could a party dump an unorganized mass of documents on another party. The court ruled that producing e-mail without identifying their corresponding attachments, whether in hard copy or electronic form, fails to meet Rule 34's requirements.”

We’re glad to see that the courts are recognizing the various forms of electronic evidence and are forcing companies to adhere to the FRCP. In this case, Alberici could have been left out to dry if the court hadn’t recognized the importance of the attachments associated with the emails in question. Without the attachments, who knows which part of the story would have remained silent in court?

Posted by Surety, LLC on April 29, 2008 at 10:03 AM
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