Implications of Abandoned Email Archives: Increased Legal Risk and Cost
In the previous blog post, the problems of Dark Data and Infobesity were introduced; the terabytes or petabytes of uncontrolled and unmanaged unstructured information that pervades many organizational infrastructures due to the absence of effective information governance procedures. It was also pointed out that abandoned or decommissioned email archives are an overlooked hiding place for dark data.
With that in mind, let’s dig a little deeper into the possible repercussions of abandoned and decommissioned email archives; higher regulatory and eDiscovery costs, higher regulatory and eDiscovery risks, and a major impact to end-user productivity.
If I can’t find it, it doesn’t exist…right?
The Federal Rules of Civil Procedure (FRCP) are the regulations that specify procedures, including discovery, for civil legal suits within United States federal courts. Discovery or eDiscovery is the process of a party to a lawsuit to request (demand) any relevant information/documents from the opposing party that can help them prove their side of the case before trial begins.
The theory of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.
Even before the discovery phase begins, all parties to a lawsuit are required to meet early on in the legal process to discuss the going forward process including what information, information sources, and data repositories each side has and what is expected to be in those information repositories so the discovery requests can be structured. This early meeting is referred to as the “meet and confer” and many Judges will set the meeting date, usually within 30-45 days of the lawsuit being filed. The meet and confer is important to our dark data discussion because both parties are expected to give a full accounting of their possible information resources. The fact that an abandoned email archive exists but was not called out could become a huge problem later in the proceedings.
The party asked to produce any and all relevant information to the requesting party has an absolute duty to find and turn over everything that’s relevant, even though the requested information could be damaging to the producing party (except for information that can be deemed privileged).
“Your Honor you have to believe me, my client didn’t tell me they have an old email archive!”
An abandoned email archive that has been forgotten about and not included in the discovery process can be the basis of receiving a huge fine or even loss of the case because even if the non-inclusion was inadvertent, the court could see it as trying to hide damaging information from the Judge or jury. This could trigger an “adverse inference” instruction to the jury telling the jury that they could conclude that the party not producing the requested evidence didn’t turn it over because it would negatively impact their case, e.g. they didn’t want to turn over a “smoking gun” (see the smoking gun theorem at the end of this blog). An adverse inference usually means the lawsuit is lost. The only question now, is how big the judgment will be and whether you will also have to pay the other sides legal costs, in addition to your own. As you can imagine, an abandoned and forgotten email archive is going to at least raise your eDiscovery costs and probably your legal risk as well.
Increasing the odds
To ensure your organization is not caught flat-footed, there are a couple of relatively simple things you can do quickly:
- Get a definitive answer to the question; Do we or have we ever had an email archive?
- If the answer is yes, get the details; what brand was it – Mimosa NearPoint, Educom or Zantaz EAS or another?, during what timeframe did it exist?, do backup tapes still exist?, was it simply shut down or was the data migrated somewhere else before decommissioning?, if yes – where?
- If it is still sitting somewhere, start a migration project…in the long term, this will cost you much less than having to throw money at high cost consultants to do it in a short period of time under a deadline because a Judge ordered it.
- After the migration is complete, immediately start a defensible deletion process to dispose of all migrated data that you aren’t legally required to keep. Once that data that can be deleted, is, then it will never come back to haunt you again.
There are a couple of companies out there that can migrate old email archive data at an attractive price. Archive360 has a proven track record of successfully, inexpensively, and quickly migrating huge amounts of Mimosa NearPoint archived email, contacts, calendar entries and public folder content to many other storage repositories with their Archive 2-Anywhere solution. If you do have an abandoned email archive (or even one you would like to shut down for cost reasons), get ahead of it and call us today.
Note: The Smoking Gun Theorem
A smoking gun is defined as indisputable proof or evidence of a crime as in “the smoking gun email clearly showed they did it, and in their own words”. The smoking gun theorem states that every time a smoking gun document is intentionally destroyed so that the other side won’t see it, a copy of it will be found at the most inopportune time (along with evidence that you tried to destroy it). This never turns out well…