What s the Best Way to Handle Discovery?

What’s the Best Way to Handle Discovery?

Some organizations choose to simplify the task of archiving electronic records by marrying their IM archives with existing e-mail stores. Consult with your legal, compliance, records management, and IT departments to determine if integration is your best approach. If so, you may want to consider a product such as that offered by records-management vendor Iron Mountain, which helps eliminate the need for separate instant messaging and e-mail archives. ^[9]

Alternatively, some organizations opt not to automate. Instead, they print out all their old instant messages and e-mail, then hire an attorney to sort through the messages with a highlighter. This reactive approach is time-consuming, costly, and risky, should your team fail to eyeball a smoking gun instant message or e-mail the opposition discovers.

According to Osterman Research, many companies that don’t have a comprehensive e-mail archiving policy in place also lack the financial means and manpower to search for and produce requested e-mails in a quick and responsive fashion. On average, restoring the oldest e-mail currently retrievable would take 9.6 person-hours—more than a full work day—just to locate one e-mail. ^[10] Not surprisingly, many organizations have wasted enormous amounts of time and money searching for instant messages, e-mail, and other electronic records in response to discovery orders.

The courts have traditionally ruled that searching e-mail messages is a critical part of discovery, a process that does not pose an undue burden in terms of time, technology, or cost. Expect the courts to adopt a similar attitude toward the discovery of instant messaging records.

As a rule, it is far less expensive to prevent a problem today than it is to do damage control tomorrow. Take a proactive approach to IM risk management. Establish written rules, draft clear policy, educate employees about content and compliance, and enforce your strategic instant messaging program with a combination of disciplinary action and technology designed to manage IM risk, retention, and regulatory compliance. ^[11]

^[9]Tony Kontzer and Martin J. Garvey, ‘‘Iron-Clad Archiving: Iron Mountain Partners to Help Companies Archive Instant Messaging,’’ Information Week (May 26, 2003), 22.

^[10]Jeff Brandes, ‘‘The Role of Secure Archiving in the E-Mail Life Cycle,’’ Infostor, (November 2003) www.infostor.com

^[11]Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.