Get your email system prepared for law suits

Eugen Tarnow  January 12 2009 10:06:24 AM

Email records are popular for use in lawsuits.  This is because they often contain very useful, very current information about the author, the company and its processes.  This information includes the exchange of drafts of documents and lengthy attachments, to communications about the intentions and conduct of employees. Since all of these types of information can be found in the email data store, it is likely that, at some point, your organization will need access to the email data stores for this purpose.  

One easily overlooked but equally important element to this issue is the fact that your company may also want to sue someone else.  Many companies are doing an astounding amount of business via their email.  Thus saving the right email could support your company in the event of a lawsuit, as well.

In any event, recent changes to the Federal rules of Civil Procedure (rules of litigation) require parties to a lawsuit to be able to produce relevant electronic documents – including email -- as part of the discovery process.  This requirement has several components, including:

• The ability to set aside electronic documents that are relevant once a company knows a lawsuit has started
• The ability to give those electronic documents to opposing legal counsel on a reasonably accessible medium within a reasonable period of time
• The ability to determine what the basic inventory of documents contains, how they are presently stored, and whether documents have been destroyed pursuant to a schedule

Don’t wait until litigation to be able to search and retrieve email documents.  Litigation is often a high-stress, fast-moving event that requires quick response (you may have to stay overnight several days in a row).  Be prepared by having a method in place to search the email data store, put documents on “litigation hold” and produce them easily and cheaply.  Don’t rely on back-up tape to do this.  Back-up tape is only good for disaster recovery.  Quick response is not likely from your back-up system.

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