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:

  • 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.

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:

  • 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.

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