The revised Federal Rules of Civil Procedure (FRCP) set aggressive timelines for the discovery of electronic information, such as e-mail, and strict penalties for the destruction of evidence. The revised FRCP also include safe-harbor provisions to protect organizations that implement standard retention policies for electronically stored information. The rules, which were drafted by the Supreme Court and approved by Congress and the U.S. Judicial Conference, have already had a profound effect on the way the U.S. legal system handles electronic evidence including e-mails and digital files.
Companies Remain Unprepared for Litigation
- 53 percent of companies lack a policy to govern e-mail retention and deletion.
- 67 percent of companies allow individual end users to determine how long messages are kept by the company.
- 66 percent of companies do not have the e-mail archiving technology required to manage e-mail retention, litigation holds and e-Discovery.
"The survey reveals serious legal issues for organizations that are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements," said Michael Osterman, CEO of Osterman Research. "Many recent court cases have shown that companies are expected to show a clear retention policy. The time is now for all companies to set and manage retention policies for their entire organization."
No Consensus on Retention Strategy
- 47 percent of companies have implemented e-mail retention policies.
- 36 percent of companies keep all messages for the duration of their policy while 64 percent vary retention policies based on a pre-defined criteria. Within this group, 50 percent vary retention policies by user, department or business unit and 50 percent set policies by message content.
- The average retention period varies greatly by company. 21 percent of companies keep messages, on average, for more than 5-years; 43 percent keep messages for 1 to 5-years; 36 percent of companies keep messages for less than 1-year.
- 77 percent of companies have at least one retention policy that dictates that messages are kept more than 5 years. 36 percent have a policy that dictates that some messages are kept for longer than 10-years.
many years. Other companies view e-mail as a necessary evil and who worry about "smoking guns" tend to delete messages as quickly as possible.
2008 Will Be the Year of E-mail Management
Although most companies are not prepared to meet the new FRCP requirements, the survey results show that 64 percent of companies plan to implement new e-mail retention policies over the next 12 months.
One of the reasons that companies have been slow to comply with the new requirements is that there are typically many stakeholders involved in setting retention policies. According to the survey:
- Legal typically drives the development of retention policies. The legal team is involved in setting policies at 81 percent of companies.
- Other stakeholders that are typically involved include IT (72 percent of companies) and compliance (65 percent of companies).
- Business stakeholders play a less important role in the development of retention policies. Only 48 percent of companies included business managers in the process and only 28 percent included records managers in the development of e-mail retention policies.