Avoiding the E-Discovery Litigation Headache

By Arthur Riel 2

In a number of surveys, various researchers have determined that nearly 70% of companies are at risk for an e-discovery litigation headache. The root cause of the litigation headache is the fact that everyone from government agencies to regulators to judges views electronic communications as business records that must be produced and, in many cases preserved, by organizations.

Whether it is the required retention of electronic communications for specified periods of time by regulators or the updated Federal Rules of Civil Procedures in the US Federal Courts, companies large and small are being ordered to produce their electronic communications with increasing frequency. Those that cannot comply learn first hand why it is referred to as a headache!

The electronic communications for many companies are stored haphazardly within their host or backup systems. In the case of email, e-discovery typically results in a search of the mailboxes of a mail server as well as PST files throughout the network and backup media. E-discovery costs for collecting data from these sources averages $500 to $1,000 per GB. It is easy to see that e-discovery costs can quickly add up to six and seven figure cost profiles when even small organizations can accumulate several terabytes of such data.  It is no wonder that 30% of companies have admitted to settling a lawsuit, even a merit-less one, to avoid the cost of e-discovery.

Failure to produce the material can have even more dire consequences with numerous court cases resulting in millions of dollars (or more!) in sanctions, default judgments and/or dismissed legal cases.

The Five Facets of Litigation Headache Avoidance

How does a company prevent this litigation headache and the various unpleasant side effects associated with it?

First a company must be proactive in retaining its electronic communications within a centralized, easily searchable and complete archive. The company must decide which types of data are included within the archive, and which are to be considered out of scope.  Primary email servers are always in scope but companies vary in their coverage of more exotic electronic communication sources such as Instant Messaging, webmail, faxes, text messages, VOIP voice mail files, and third party applications with an email or chat capability.  The rule of thumb in litigation is that any data currently housed in an organization needs to be produced, regardless of the difficulty in finding or processing it.

Step 2

Second, a company must ensure that the archive solution they have acquired allows for the full text indexing of both metadata and data.  Most solutions index metadata but some postpone the indexing of the actual email data, arguing that indices can be built dynamically at retrieval time, using the metadata as a primary filter.  These solutions rarely scale in the real world where the metadata filter might be very broad, e.g. find all email from the last three years with one of 15 words provided by the courts. Companies often realize this scaling issue when it is too late and their system requires several weeks to build the prerequisite text indices on a very large data set.

Step 3

Third, a company must ensure that their solution allows for the optimal retrieval of electronic communications from the archive in a complete and timely fashion.  A centralized archive which lacks expressive power at retrieval time will cost the organization excessive legal fees when lawyers, rather than the archive, must determine which messages are in the court or government response and which are not. The key to an optimal archive is the allowance for the richest set of criteria possible. The solution should not just cover the basics such as date range, sender/receiver(s) and simple text search but include advanced criteria including department level searching, support for mail group membership tracking, support for multiple email addresses per user, internal/external mail filters and scoped text-based searching (i.e. searching for a word, phrase or regular expression in one area of the email (e.g. subject, body, attachment data, attachment metadata)).

Retrieval should be exportable in a number of format choices (e.g. text, standard email format, PST files) and executed from one of several points such as a web-based retrieval tool and a familiar mail client interface.

Step 4

All activities within the archive should be logged, tracked and fully reportable for built-in audit capabilities. The auditing of email archives is especially important within regulated industries as many regulators will examine the company’s business processes and solutions for this important feature.

Step 5

Last but by no means least; the solution should minimize the use of human capital in its care and feeding.  Archives should provide self-monitoring capabilities for routine maintenance and software wizards to assist in the reconfiguration of the archive or the addition of new infrastructure such as an additional email server.

Leveraging the Email Archive for Lower Total Cost of Ownership

Many companies that acquire an email archive for e-discovery purposes begin looking for other uses for the archive and its data to reduce the TCO and speed up a return-on-investment.  Two interesting areas that are pursued by organizations include mailbox or storage management and knowledge mining of the archive.  Mailbox management involves aggressively migrating data from the email server plant to the email archive with the goal of reducing operational expenses on the mail plant.  The email is replaced by stubs that allow the end user to be unaffected, but the email server becomes more efficient, easier to restore and easier to backup.  Local copies of email on the end user machines is reduced or eliminated.  The organization sees greatly reduced costs and more streamlined processing.

Knowledge management is the ability for an email archive to be mined for valuable information from the sea of unstructured data that represents the typical archive. Organizations use data mining and business intelligence on their archive to fulfill a number of requirements including email server usage statistics collection to improve the operational efficiency of the mail plant; sales process monitoring to improve pre-sales training and proactively deal with any client issues in the sales pipeline; internal policy monitoring and management; client relationship management data collection (e.g. email metadata is an excellent media for detecting personal relationships that cross company boundaries); and cross selling opportunity detection.  Archiving solutions with integrated data mining capabilities are especially valuable in these types of endeavors.

Email archiving solutions can simultaneously reduce the e-discovery/litigation risks of an organization while lowering their email server plant operational expenses and providing a plethora of useful knowledge easily mined from the organization’s own communications. There is no doubt that many of the 70% of companies currently at risk for the e-discovery litigation headache will be quickly acquiring electronic communications archives.  The only question is one of being proactive or paying a very steep price.

Note: Click here to watch a recording of Arthur’s webinar on this topic presented December 16, 2008.

Arthur Riel is the Atempo Digital Archive for Messaging Product Manager at Atempo. Previously, he was CEO and a founder of Lighthouse, a technology outsourcing and compliance product company.