The True Cost of Under Preserving ESI

The arguments for the under preserving of ESI are well known and varied.  The most prevalent argument I hear for under preserving is “the more data, email, files etc. we keep, the higher the risk that it will be used against me in litigation”.

This is an argument that assumes that all ESI is somehow harmful and should exist for the shortest amount of time as possible. This is one of the main reasons companies adopt the 30/60 or 90 day retention policy for their employees email accounts.

There are two main problems with this type of thinking. First, for those companies that enforce a 30/60 or 90 day retention policy for their email accounts, in reality they are not lowering their risk of “bad” ESI being used against them. They are simply making it more expensive for them to find that ESI when directed by a discovery request.

Employees do not delete all emails, even when they are running up against a “Clean out your mailbox or it will stop working” message from IT. They simply move that email they want to retain out of their email box into a personal archive or PST. The ESI still exists.

The second problem with this 30/60 or 90 day retention policy is it ignores the fact that ESI can help you in litigation. Having access to all relevant data for a given action will help you in determining what your strategy should be in reacting to the litigation. This is called Early Case Assessment (ECA). Reviewing all relevant data for a litigation can tell you if you should settle the case because you can’t prevail or to fight the litigation because you can prove you position in the litigation.

Creating retention policies for your ESI based on business requirements rather than creating retention policies to flush “bad” ESI will insure ESI is available for business use as well as for review during early case assessment.

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