Email Retention Dilemmas

Management dilemma:  “We want to keep email “virtual paper trails” to defend the firm’s interests, for example, from claims of malpractice, but we don’t want to keep email that might expose the firm to liability, embarrassment, or discovery expense.”

Law firms vary widely on retention policies and practices.  Some delete all messages older than a defined time period, unless saved to designated folders on the network or saved to the users’ local hard drive.  Others ask users to periodically purge old messages.  Others do nothing and let the messages build up indefinitely.  Others have some variation on all of the above.

Periodic purging of paper documents is a well-established practice to reduce the expense of document storage space and to minimize the great expense of retrieving, reviewing, and copying paper documents in response to discovery requests.  That cost-saving motive is not as strong in respect to email because it can be stored, retrieved, reviewed, and copied at very little cost. 

Purging to eliminate potentially damaging email content may be ineffective or counterproductive.  A copy of the message may also reside on servers and desktop hard drives of recipients and anyone to whom it was forwarded.  Further, the message may be recovered from server backup tapes or other storage devices of the firm or of the sender or recipients.  Ironically, deletion of email from firm hardware may blind the firm to useful information when an adverse claim or allegation surfaces.  Alternatively, mail that is retained can be scanned by intelligent search engines or email content filtering devices (see eReports October issue) to find damaging or exculpatory information.   

Attorney-user dilemma:  “I want to keep email for future reference, but how can I find the ones I need when I need them?  Also, if my firm provides unified messaging, allowing me to receive faxes and voice mail in one, desktop inbox, then how can I find any of these later?”

Although most email messages are never read twice, some will be critically important later.  Email content is an essential input into the creation of legal advice.  Email may also contain output of advice to a client. Unfortunately, attorneys cannot predict which messages will be needed in the future or the context of that need.  A message might be required for another matter, a future matter, or some other unforeseeable purpose.  Further, a seemingly inconsequential or routine message can become highly material when an unanticipated dispute or opportunity later arises.  In view of these uncertainties, attorneys usually prefer to keep everything.  That begs the question:  How can I find what I want later? 

Sorting mail into categories, as is done with paper filing systems, is not a satisfactory solution.  Microsoft Outlook, Novell GroupWise, and Lotus Notes allow users to create folders into which they can move messages.  Sorting in this way can be useful to retrieve some messages, say by client/matter or subject categories, but it does not help the attorney to find messages that are related to each in ways besides the pre-defined categories.  It also requires the vigilance, time, and tedium of sorting all incoming mail, which many attorneys find to be too high a price for an uncertain benefit.  In addition, sorting may be slow or impossible when outside the office, unless remote access software is optimized and users are trained.  For these reasons, a retention policy that requires individual attorneys to sort and save only messages they need is not practical. 

Another way to find specific email content is to use the full-text search functions of the messaging systems mentioned above, but these are not a complete solution.  Full-text search is popular and intuitive, but relevant emails are not always or quickly found.  Unfortunately, standard search tools cannot automatically look for synonyms, pick up related documents, or rank hits by relevance.  Another drawback is that they search only individual user files and “shared” files that have been deliberately set up and maintained by users or administrators.  Email received or sent by colleagues, however, cannot be detected or retrieved.  These limitations can be overcome by more powerful search tools that work with the major messaging systems.  These solutions are too numerous to review in this article, but there is a list of search engines that can be found at www.searchtools.com/tools/tools.html. One offering however, which we continue to believe is worthy of note, is DolphinSearch, which can search for requested information from a user’s viewpoint with the ability to understand words in context like that of a human librarian. 

IT administrator dilemma:  “I can configure the system to retain email for a limited or indefinite period, but I need a clear direction and adequate resources.”

Growing stores of email require additional disk space on the network messaging server.  Fortunately, additional disk capacity can be added to most systems without great expense.  Nonetheless, bulky document attachments and the fax and voice files of unified messaging can gobble up space very quickly.  There are other significant costs too. Large stores of email increase the time needed for backup and other maintenance tasks.  If anything goes wrong, troubleshooting and recovery is likely to require more IT staff attention and extend the period of email unavailability.  Finally, if large stores are retained on tapes, then restoring those, for instance in response to discovery requests, can require substantial IT staff time and other expenses. 

The IT administrator can help management reach a sound decision on email retention, first, by understanding the underlying concerns and needs of attorneys and firm management and, second, by identifying the best technology and configuration options and related costs that can satisfy those needs.   KKL can help you optimize your current system or select new solutions that best fit the needs of your firm’s attorneys, management, and system administrators. 

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