Its time to address this expectation from records managers that all records are created equal…They’re not.

How many pieces of paper a day does the average employee create or receive? For me its zero. Now, how many electronic documents, spreadsheets, email, attachments, instant messages, etc. does the average employee create or receive per day? In my case its hundreds of objects and 30-100 MB per day.

I work with customers all the time that try to use a very detailed retention schedule they created for hardcopy documents with their electronic records. They instruct their employees to classify each email etc. based on the retention schedule with little thought given to how long this directive will take each employee. They throw the policy over the fence and because few openly refuse to use it, assume it is working.

In records management we have a 5 second rule: if it takes an employee more than 5 seconds to classify a document, they will either attach the longest retetion period to it or delete it immediatly. I worked with a large bank that had a 290 page retention schedule that employees were suppose to consult for every record including emails. Every employy I interviewed either didn’t know the schedule existed or they classified everything as infinite retention period. Hardly a usefule system.

Companies not under a federal or state regulatory retentio requirements need to get a little more realistic about electronic record retention policies. Usually “high water mark” retention policies are the way to go. Assign retention based on department or function such as “2 years” for everyone on Finance. Many companies spend way to much time and expense trying to not keep the “lets go to lunch” types of emails for example. Why not keep them, they take up little room and are not detremental.

Lets just get more realistic about records management.

Archiving All Relevant ESI Reduces Cost of Discovery and Raises Overall ROI


White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009)

In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to terminate her employment was made.

Without additional information, however, plaintiff’s forensic expert could not come to a conclusion regarding the meaning of the discrepancies. Accordingly, plaintiff sought the re-production of the emails, in native format, and their attachments from the Outlook accounts of both the sender and the recipient of each email. Plaintiff also sought the production of the relevant PST and OST files and access to the hard drives used to create any of the emails’ attachments. Plaintiff’s motion was granted in part and denied in part.

Upon examination of three emails sent between plaintiff’s supervisors and those emails’ associated attachments, plaintiff’s expert discovered “discrepancies between the creation and sent dates of the emails and attachments” but could not make any definitive conclusions without additional investigation.

For example, despite defendants’ claim that the decision to terminate plaintiff was made on July 2, 2004, an attachment to one of the relevant emails showed a creation date of June 9th.

Plaintiff’s expert indicated that in order to determine when an email was created and transmitted, he needed to review the email from both the sender’s “sent items” and the recipient’s “inbox” and that he also needed access to the computer that created the emails and their attachments. Accordingly, plaintiff filed her motion to compel.

The above mentioned case highlights the case for retaining a complete set of ESI for a specific retention period. The cost associated with tracking down and restoring specific email messages and attachments from backup tapes or custodian PSTs can be extremely expensive and time consuming.

In this case, if the responding party had put in place a proactive ESI archive, the cost and time involved to produce the specific emails and attachments in a native format with all associated metadata would have been minutes.

Even more so, if the defendant had a searchable proactive archive to query the first time, the requested ESI could have been produced quickly without all of the additional costs associated with the second round of searches.

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.