One year after the launch of the revised Federal Rules of Civil Procedure, more than 65 percent of U.S. businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence. The data is based on the MessageOne E-mail Archiving Practices Survey of IT professionals, conducted fall 2007 by Osterman Research for MessageOne.
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
Section 37(f) of the revised FRCP allows for the destruction of e-mail and other electronic documents, as long as the deletion is part of a standard retention policy. Despite the clear requirements, the E-mail Archiving Practices Survey showed that most organizations are not prepared:
In the event of litigation, these companies would likely be required to search back-up tapes, desktop files and legacy systems to find information that was deleted in the absence of a good-faith retention policy. Manual e-discovery searches can cost hundreds of thousands or even millions of dollars. In addition, these companies risk being sanctioned for the illegal destruction of evidence, including courtroom penalties that can cost a company an important legal case on process grounds.
"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
While the revised FRCP provide a strong incentive for potential litigants to put e-mail retention policies in place, they do not provide any guidance on the contents of the actual policies. As a result, companies have taken vastly different approaches to e-mail retention:
Retention strategies typically reflect an individual corporation's philosophy around e-mail and litigation. Companies that view e-mail as a strategic asset and who value the context provided by e-mail in litigation keep e-mail messages for
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:
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