Magazine article Information Management

Strategies for Minimizing Litigation Risks, Costs

Magazine article Information Management

Strategies for Minimizing Litigation Risks, Costs

Article excerpt


It's nearly inconceivable for anyone working in an office environment to imagine a life without e-mail. People talk shop, negotiate deals, send documents, give advice, and just plain chat on e-mail every day. And it's the record of these things found in e-mail that makes it so very valuable in litigation--which has, in fact, made e-mail a keystone of litigation.

With the maturity of e-mail and its foreseeable use for litigation, the e-mail software packages, e-mail management tools, and e-mail archiving solutions on the market today should by now be capable of being responsive not only to the demands of business use, but also to litigation and discovery demands, which should reduce its difficulty and costs.

So, too, should developments in the legal field. Changes to the U.S. Federal Rules of Civil Procedure and promulgation of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production are both intended to address the difficulties and costs of electronic discovery.

Notwithstanding these developments, e-mail discovery and its associated costs and headaches are not diminishing. Why? The reason is simple: While changes to the Federal Rules have streamlined discovery, and technology advances have made capturing and searching e-mail for discovery more efficient and less costly, the number of cases in which e-mail discovery is sought, and the volume of e-mail captured and processed in an average case are increasing.

According to Ann Zdansky, President of The Common Source Inc., an electronic discovery processing and litigation support company, the average personal e-mail collection or archive being analyzed has 25,000-40,000 items, and the total number of e-mails being analyzed in a single lawsuit commonly reaches 3 million or more. In very large cases, these totals could be much higher.

That's a lot of e-mail to manage under the best of circumstances. And, unfortunately, circumstances are rarely ideal. Like other documents and records, e-mail is subject to the principles and rules of records and information management (RIM) and to law and legal doctrine.

Zdansky's figures are illustrative: it is highly unlikely that most people have a legal or business need to retain 25,000 e-mails to get their work done. In most cases, analysis is likely to yield the conclusion that many or most of these messages could properly have been deleted according to a company's records retention policy long before any legal action arose.

RIM Principles Surrounding E-Mail

An e-mail, like a word processing document or paper document, is a record if its contents so dictate: a transaction of organizational business, discussion of regulatory or legal matters, and many other attributes will trigger record status. When this occurs, the e-mail should be treated like any other record. That means it must be properly managed throughout its lifecycle (from creation to disposition), which means it must be indexed and organized, its proliferation must be controlled, and it must be subject to systematic disposition. Many of the prominent cases of e-mail discovery problems in recent years highlight the fact that, insofar as e-mail is concerned, these principles often are not complied with, and the chaos that results gives rise to discovery problems and, in many cases, sanctions.

Legal Principles Surrounding E-Mail

Once an e-mail is identified as a record, duties arise around it. If the organization has a records retention schedule, which will reflect the legal and business requirements for which and for how long records should be retained, e-mail is subject to it. In some cases, there may be specific legal requirements concerning electronic communications (for example, in a brokerage firm) or general requirements governing communications generally (as in the case of a law firm's communications to its clients or opposing counsel). …

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