Monday’s Child Is Full of …

That too, sometimes, maybe, but not today.

Today’s subject is obliquely about something that will enrapture the heart of every litigator with deep-pocket clients: e-mail management and the fees associated with litigation that has extensive e-mail discovery.

Today’s message is also an opportunity to let others do my thinking for me.

I’m going to quote from a recent study by a US vendor [MessageOne, Inc.] which is generally applicable to Canada, too, titled “Critical Email Management Problems“. The study is available on-line here, although you might have to join ZDNet (it’s free – it’s worth it) to get it.

One of the problems the vendor discusses is called the “The PST Time Bomb”. This is a reference to the .PST files that Windows Outlook® uses to save e-mail messages.

“PROBLEM #5: The PST Time Bomb

In an effort to deal with the onslaught of email traffic, organizations have explored several options – setting mailbox limits, requiring users to archive their own emails, or deleting all emails after a specified period of time. None of these options have been effective. Users object to mailbox size restrictions and frequently begin underground archiving, refuse to archive emails, and put companies at risk with regulators holding them culpable for stored emails that were missed during legal discovery searches.

Underground archiving is a practice that occurs when end users begin creating archives in locations counter to email policy requirements. In many cases, this practice originated at the request of IT who had a main focus of freeing up space on the network. One of their preferred methods for underground archiving is the creation of .PST files. Today, most organizations have reversed these policies in favor of central control over email storage, which greatly facilitates search and recovery for legal and compliance requests. Today, the problem is so pervasive that 38% of IT managers list eliminating local .PST files as one of their top five email concerns.”

The study – written by a company which, not surprisingly, is offering what it says is a solution to email management problems – identifies 7 currently critical problems in e-mail management.

“The Email Crisis: The Seven Critical Problems

1. Email Disaster Recovery
2. Managing Complex Email Retention & Deletion Problems
3. Complying with E-discovery Requests
4. Controlling Exchange® Data Store Growth
5. The PST Time Bomb
6. The Security Administration Burden
7. Managing Wireless Devices”

The study states:

“The grand slam of email issues is performance, disaster recovery, compliance, and e-discovery. Email systems were not designed for long-term storage and as a result, performance is negatively impacted if email storage thresholds are not managed properly. Disaster recovery and business continuity are cited by 70% of senior executives as their primary reasons for email archiving. When systems are down so is productivity, negatively impacting bottom lines. Compliance requires that retention policies be put in place enabling corporations to meet new regulations and mandates. With CIOs and CE Os being held liable for compliance, jobs and corporate well being are on the line. E-discovery is the latest burden that CIOs are shouldering. Through 2010, companies that have not adopted formal e-discovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services.” [footnotes omitted, emphasis added]

and

“The email management crisis is comprised of these email facts:

1. Email is the most commonly used and most critical business tool.
2. Email is now discoverable and must be readily accessible.
3. Email must be saved and easily retrievable to comply with legal and regulatory mandates.
4. Email needs to be continually accessible so that business is not interrupted.
5. The increased use of email has resulted in more documents that need to be archived.
6. The increased use of email has created a greater need for data stores leading to a management nightmare that is growing out of control.”

I highlighted “Through 2010, companies that have not adopted formal e-discovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services.”

Just think how much we lawyers can bill if we can include the gathering and producing component within our legal services bills, but that’s the client’s concern, not the lawyers’ right? Oh? You say it’s the lawyers’ too? Shhhh … don’t tell anybody lest you upset your partners, bosses, business managers, surprise (not alarm) Her Majesty, and be drummed out of the private practice part of the profession.

Anyway, e-mail management issues are not just non-lawyer office problems. I can tell you, from personal experience, that I know of many lawyer-users of Outlook who haven’t deleted messages since before the Flood.* That might not be a problem in a bigger firm with competent, in-house, IT. It is likely going to be, eventually, in smaller firms without that support. On the other hand, size is not necessarily proof that one will have competent staff. As a friend recently said, when one’s main IT manager learned everything he knows about IT in an accounting course …

* That’s Noah’s Flood, not the introduction of e-mail or Paper Chase.

I’ll rant about Paper Chase some other time. I might even have a few words to say about the relationship between Noah, the Flood, IT and the legal profession.