Strategies for minimizing litigation risks, costs.

• Author: Montana, John

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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...