Can IT and Legal Agree? - InsideCounselmedia.insidecounsel.com/insidecounsel/historical... ·...

Can IT and Legal Agree?Figuring Out an Email Retention and

Deletion Policy

Mark Diamond, Contoural

Copyright © 2009 Mimosa Systems, Inc.

Mark Diamond, Contoural

Bill Tolson, Mimosa System

Moderated by Tom Duggan, InsideCounsel

July 21, 2009

Legal Information Is Not Legal Advice

Contoural provides information regarding business, compliance and litigation trends and issues for educational and planning purposes. However, legal information is not the same as legal advice -- the application of law to an individual or organization's specific circumstances. Contoural and its consultants do not provide legal advice. Clients should consult with competent legalcounsel for professional assurance that our information, and any interpretation of it, is appropriate to each client's particular situation.

Disclaimer

CONTOURAL CONFIDENTIAL Copyright © 2008 May not be distributed or reproduced without written authorization.

Getting Stuck

Sound Familiar?

� IT interested in e-mail archiving� Archiving put on roadmap� IT asks Legal for policy, direction, funds


� IT asks Legal for policy, direction, funds� Legal says we need to decide?� Committee formed� Committee drafts Charter� Committee meets� Committee meets� Committee meets

� Committee meets

IT Vocabulary

�Active Directory

�Fuzzy Logic Searches

Legal Vocabulary

�FRCP & FRE

�ESI

Are we speaking the same language?


�Fuzzy Logic Searches

�Single Instance Storage

�Journaling

�Boolean Expressions

�ASP/ISP

�Cloud Computing

�ESI

�Legal Hold

�Discovery Protocol

�Custodian of Records

�Chain of Custody

�Spoliation

The Elephant in the Room


� Legal vs. IT Expense� Whose Requirements� First to Raise Hand Pays?� Who is going to engage the business?

What Type of Document is E-mail?

� E-mail is a type of medium� Sometimes misclassified as a record type

� E-mails are business documents, some of which are business records


are business records� A Business Record is defined broadly as any original document or object that supports an organization’s business activities and decisions.

� A Convenience Copy is defined as a copy of a document or information that has been created or kept only for convenience or reference.

� Both Records and Documents may be subject of litigation or regulatory discovery

Aggressive Deletion Drives Underground Archiving

WWW

Removable CDs,

DVDs

Printer

iPod Employee Personal Home PC

Recipient E-mail

System

Employee

Remote

Offices


“The hot temper leaps over the cold decree.” (Shakespeare, Merchant of Venice)

Company Desktop

or Laptop

WWW

Network File

Server

PC Local Hard

Disk

Gmail, Hotmail, Yahoo, etc.

Blackberry or

PalmMail Server: Automatic

Deletion

USB

Drives

Backup Tape

Employee

Underground

Archiving

Risk of Over-Saving Electronic Documents


Collection� $1,500/PC� $1,000/GB network files

Processing/Culling� $1,000/GBOutside DocumentReview� $200/hour per person @ 40 items/hour = $5/file or e-mail

� 50% of cost of litigation is discovery� Majority of discovery is of electronic documents

Source: Socha Consulting

Case Study: Using “Off the Shelf” Schedules

Company’s

Record

Name

Document Names Department

Managing

Record

Record

Medium

and

Location

What the Schedule Said:

Regulatory Requirement: Employee Insurance Information, 7 years

What Companies Actually Had:


Location

Company A Insurance Records

Policies, AmendmentsApplicationsInsurance Certificates

Risk Management

Paper

Company B Benefits ApplicationsInsurance Premium StatementsActuarial Reports

HR Electronic or Paper

Company C InsuranceClaims

Industrial Accident & InjuryReportsOSHA LogsClaim Files

Facilities Email

The Five Second Rule

� Employees will spend up to five seconds manually classifyingdocuments

� If it takes longer, they will use thefive seconds to subvert the


five seconds to subvert the classification system

� Given the choice, most employees optfor maximum retention for documents they wantto preserve

E-mail File Plans Make It Easier

Email Retention Bucket Sub-folder Record TypeRecord

Category

Retention

Period

Inbox Incoming Email 90 Days

HQ Finance

Record Retention and Deletion Policy

and Schedules

E-mail File Plans


Inbox Incoming Email 90 Days

Sent Outgoing Email 90 Days

Working Documents Projects, Templates, Correspondence,

ReferenceVarious 3 years

Business Records Reconciliations Account Reconciliations FIN1000 7 years

Indefinite Reporting Position Papers, Technical Accounting

Support Documents, SOX Compliance

Reports, Government Reporting (non-

SEC)

LEG4000 10 years

Audit Reports External Auditor Reports FIN2000 CR+10

Investments Investment Statements FIN3000 Act+7 years

Investments Investment Work Papers FIN5000 Act+10

yearsLegal Legal Correspondence LEG1000 ATA + 6

yearsCleanup and Review Working or Business Items after

retention has passed

45 Days

E-Mail Classification Options

• All mail is classified and retained equally

UniversalUniversal

• Sender or recipient group can classify messages:• Executive communication and governance• Key organizational roles (HR, Finance, Legal)

Role-BasedRole-Based

• Users classify messages within the email system

Manual/User-BasedManual/User-Based


• Users classify messages within the email system• Managed Folders• Toolbar buttons• Drag and Drop• Pop-up windows

• The message content itself can be used as a source of metadata• Subject, content, attachments• Considerations: Fuzzy matches and misspellings, obfuscation and encryption, escalating complexity and processing

• Not attachments

Automatic/Content-BasedAutomatic/Content-Based

Creating a Coordinated Corporate Initiative

• Finance

• Contracts

• Sales

• HR

• End-users

•Audit

•Compliance

•Records Management

ComplianceBusiness Productivity


• IT Infrastructure

• IT Applications

• Inside Counsel

•Outside Counsel

TechnologyLegal

Case Study 1

Who: Mid-sized Construction Company – 500 employees distributed across U.S.

Litigation Profile: Frequent Employment and Contract, Occasional environmental and use rights

What: One year auto archive for all employees. Selected employee drag and drop to big bucket managed folders for specific records

Strategy: Train users, create trusted custodians, eliminate PSTs from individual workstations, Enterprise search from central repository


Outcome: 6 month implementation cycle, minimal capital spending, happy users (no lost email) early case assessment, reduced discovery and review costs

Case Study 2

Who: Large Energy Company – 5000 employees mostly headquarters, some remote

Litigation Profile: Frequent employee, contract litigation, substantial (large) regulatory investigations

and class action

What: Dedicated email archive from major vendor, emphasis on long term retention of all email for key custodians, reducing costs, enterprise search

Strategy: Create 2 classes of users, capture 100% for key custodians, “drag and drop” for up to 3 years, 90 day deletion of Inbox and sent folders for the rest


up to 3 years, 90 day deletion of Inbox and sent folders for the rest

Outcome: 12 month implementation cycle, major capital spending, transparent capture for execs, decision makers, manageable retention for rest of work force

Archiving Really Isn’t About Saving…

� Do you know what you have?� Do you know where it is?� Can you search documents?� Can you easily retrieve documents?� Can you save those e-mails that are records?


� Can you save those e-mails that are records?� Can you ensure you don’t delete what you shouldn’t?

� Can you ensure you delete when you should?� Can you do all the above easily, quickly, defensible and cost effectively?

It’s all about control.

About Contoural, Inc.

Leading independent provider of business and technology consulting services focused on litigation readiness, compliance, information and records management, and data retention strategy

� Attorneys, e-discovery experts, records

managers combined with IT, archiving and

storage specialists on staff

� Average 14 years experience


� Average 14 years experience

� 10% Fortune 500 as clients

� Sells no products or document warehousing

services

� Bridge gap between legal, business needs

and IT

� Recommended by Gartner, IDC, ESG and

other analysts

� Team located across US

� Engagements across world

Contoural On-site Seminar

Seminar Title: Best Practices for Becoming Litigation Ready – New Requirements, New Responsibilities, New Practices

Length: 2 hours including Q&A

Who Should Attend:� General Counsel � Human Resource, Finance and


� General Counsel � Associate General Counsel and other in-house legal counsel

� Legal Discovery Team� Records Managers� Chief Information Security Officers� Records Managers

Cost: No charge for qualified prospects

Register: www.contoural.com

� Human Resource, Finance and Other Business Units

� Compliance Officers� Audit� Chief Information Officer� Messaging Administrators� Storage Administrators

For More Information – www.contoural.com

Recorded Webinars� ESI Data Map� Litigation Readiness Roadmap� Litigation Hold

White Papers� E-mail Archiving ROI and Business Case Development


� E-mail Archiving ROI and Business Case Development� How Long Should E-mail Be Save White Paper� Federal Rules of Civil Procedure White Paper� Impact of International Regulations White Paper� Six Steps for Managing ESI White Paper� 10 Best Practices for Archiving White Paper� What IT Can Do If You’re Going to Be Sued White Paper

Articles� E-mail Archiving: Planning, Policies and Product Selection � Are You Ready for New Compliance Rules� Applications to Find and Classify Data

Admin

End-User

Search

Mimosa NearPoint

eDiscovery

Content

Monitoring

GRIDGRID

Dashboard

Next Generation Architecture for Email

Archiving and Management

Email Information

Management

Retention Management

Mailbox Extension

Recovery

eDiscovery

Archiving

Copyright © 2009 Mimosa Systems, Inc. - Confidential

Continuous

Application Shadowing

Exchange Servers

Indexed Object Repository

Smart Extract

IndexingGlobal Single Instancing

GRIDGRID

SQL Full-text index Files

Flexible, Granular Retention Management

• Fine grain retention and exclusion

• Automated, rules-based classification

• Proactive content monitoring and alerts

• User-driven classification, e.g. based on folders and group memberships

•• Flexible & dynamic - Lengthen and shorten retention periods at individual object level without re-archiving

• Universal, item-level litigation hold across all content sources (e.g. email, attachments, file system content)

• Data protection and archiving style retention policies

• Provides true eDiscovery readiness

� Unified interface to email and file system content

� Folder browse view

� Point-in-time mailbox view

� Mailbox extension with no agents

�

Seamless Unified End-User Access

� PST archival with no stubs in Outlook

� Public folder archival and restore

� Offline retrieval of extended messages

� Hit highlighting to quickly locate relevant content

eDiscovery & Case Management

Content Monitoring Retention

End-user Search

Self-Service Retrieval

Offline Cache

Item-Level Legal Hold Legal Review Workflow and Collaboration

Compliance Reviewand Workflow

Automated, Rules-BasedClassification

Outlook Blackberry

END USER ACCESS NEARPOINTAPPLICATIONS

ECM & Records Management Apps

eDiscoveryReview & Production Apps

Mimosa NearPoint Comprehensive Content Archiving Solution

Content Monitoring & Supervision

Retention & Classification

24

Search iPhone

NEARPOINT PLATFORM

Capture / De-duplication / Data ProtectionFull-text Indexing / Flexible Retention / Mailbox Management

SharePointLaptopsDesktops

FileSystems

Exchange

PST Management Tiered Storage Disaster Recovery

SAN NAS WORM/CAS REMOTE DISK TAPE

SDKSearch,Hold,Export

Collection Apps &Tape Restoration

Why Mimosa? Lowest Total Cost of Ownership

� Proactive eDiscovery readiness� Eliminate expensive forensics and tape restoration

� Reduce legal review costs via early case assessment

� Reduce risk by proactively managing information

� Reduce operational cost� Customers have seen up to 80% reduction in storage for Exchange, file

system, and SharePoint

Copyright © 2009 Mimosa Systems, Inc. - Confidential

system, and SharePoint

� Global de-duplication across all content sources

� Ease of deployment and maintenance

� No journaling required

� End-user productivity� “Super sized” mailboxes

� Seamless Outlook/OWA, file system, and SharePoint integration

� Simple, intuitive search and browse

Thank You!www.mimosasystems.com

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