Advice on handling threats from emails.

• Author: Marshall, Jeffrey
• Position: RISK MANAGEMENT - Federal Rules of Civil Procedure

It's paradoxical: In the face of never-ending legal discovery challenges and legal codes (especially the new Federal Rules of Civil Procedure, or FRCP, which went into effect last December 1), companies are being told that they must retain key email messages, yet they need a system that allows them to cost-effectively eliminate messages they don't truly need for discovery purposes.

[ILLUSTRATION OMITTED]

A survey by LexisNexis found that 27 percent of companies didn't even have a written document retention policy. In addition, fully one out of three of companies' written documentation retention policies did not include or apply to electronically stored information.

In cases where companies were required to produce electronic documents, fully 15 percent of corporate counsels either had no processes in place or said it was "going to take a while." An additional 24 percent said they were not sure how that task had been accomplished.

"After seeing some of the onerous penalties that non-compliers have been hit with, one natural reaction among some corporations is to save everything," says Robert D. Owen, national co-chair of the E-Discovery and Information Management Group for international law firm Fulbright & Jaworski LLP. "But hoarding every document and piece of communication in perpetuity is not what the new federal discovery rules require. Nor does it provide immunity from future prosecution and liability. The real problem is that excessive retention of documents and electronically stored information can create potentially astronomical review costs in litigation."

Retaining any and all messages, notes email system vendor Message-Gate, significantly complicates the discovery process for litigation purposes. Yet, according to Osterman Research, six in seven enterprises don't have a tool in place to address email and instant messaging (IM) communication risks associated with litigation requirements. Corporate counsel--and a company's financial managers--must evaluate the minimum threshold for compliance, balancing their needs with IT, management and user expectations of privacy.

MessageGate suggests three steps an organization...