Archiving Today Means Less Headaches Tomorrow

A significant majority of business communication is conducted via e-mail. Once other forms of electronically stored information are calculated into the mix, organizations that are heavily regulated and targeted in litigation face an increasingly significant risk regarding information management and storage. The growing data volumes coupled with decreased human resources in IT and other corporate departments require a proactive approach to managing data. Corporations must begin taking steps now to manage the mountainous volume of electronically stored information (ESI), while ensuring proper preparedness to comply with various regulations and litigation discovery rules.

Why Is Archiving Important?

Archiving enables efficient records management that not only facilitates business and storage efficiency, but also ensures compliance with legal and regulatory requirements. An effective e-mail and file archiving solution will allow legal, IT and compliance teams to appropriately preserve, manage, locate and produce relevant ESI, in addition to allowing for quick enforcement of the company’s document retention policy. An archiving tool allows the organization to update and modify retention and disposal parameters as the needs of the business and regulatory requirements evolve, and ensures that the policies are consistently applied across the whole enterprise.

Implementing an effective archiving system also eases the strain on organizations’ storage requirements and IT resources. An important component of an archiving tool is the ability to reduce the organization’s storage footprint with compression and single-instance storage via de-duplication technology. Archiving tools can also reduce user reliance on local storage, such as individuals’ personal storage tables of messages (.pst files), by housing retained e-mails and attachments in centrally managed repositories.

In addition to storage concerns, human resources are tight in IT departments. According to a 2010 Gartner report on IT spending, 50.3% of respondents cut IT head count by 1-15%, while 12.4% of respondents cut IT head count by more than 15%.1 This decreased head count further strains already overburdened IT resources and makes responding to incidents outside the normal business operations and responsibilities far more difficult. Deploying appropriate archiving technology to better manage the storage, retention and disposal of business records will provide a much needed helping hand for IT departments.

Electronic Discovery Impact

In addition to the aforementioned qualities archiving systems must have, an important functionality is the ability to administer legal holds. Failure to adequately issue hold notices and properly preserve information may create trouble for an organization in the courtroom. As demonstrated in Kroll Ontrack’s 2009 Year in Review report, 39% of the cases in 2009 involved sanctions, and of those, almost 67% addressed sanctions regarding preservation and spoliation issues. An archiving solution will facilitate efficient identification of potentially relevant ESI through enterprise-wide searching and enables immediate implementation of litigation holds, preventing liability for preservation issues.

Courts are not tolerating the excuse that a company lacks the technological capability to retrieve data in this modern age. This point is clearly demonstrated in a recently released opinion from the Western District of Washington, Starbucks Corporation v. ADT Security Services., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009). In this case, the defendant argued against producing e-mails stored in an antiquated format. Originally, an IT employee cited estimates of $88,000 to produce the emails but then decided to “up the ante” to $834,285. The court was incredulous that a company as sophisticated as the defendant would fail to migrate data to its now-functional archive system, and ordered the defendant to “implement an immediate plan to make copies of the archive…disks, and to save them to an appropriate storage medium.” Furthermore, the court explained that even if the information was ruled not reasonably accessible, good cause existed to order production. Proper retention management (in this case scheduled disposal) could have alleviated the issue in the first place. This case makes it clear that if data is being stored, even in an antiquated form, the courts will no longer tolerate poor or outdated IT infrastructure as a reason to not order the production of that ESI.

Conclusion

It is far more cost-effective for organizations to proactively implement archiving technology and properly manage retention and litigation holds, rather than incur the costs to file and defend motions for preservation failures later. In addition, it is important to remember that the courts do not require perfection, but rather expect necessary steps to be taken to properly preserve relevant records for collection, review and production. See Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). Implementing an archiving system is a great proactive step toward reducing litigation expenses, while strengthening defensibility through a repeatable, well-documented process.