Sugar the Pill

August 31, 1999

90%:  Corporate information now created in an electronic format.[¬]

84 billion: E-mails sent every day worldwide.[¬]

60%: Total of all person-to-person communications now made by e-mail among employees of European enterprises.[¬]

Paper has been the medium in legal matters for centuries and converting to electronic storage has not been simple. Despite e-mail being the main cog in the wheel of business, law firms have not been quick to save trees. In their recent guidelines on e-mail, the Law Society wrote that a majority of firms still print all e-mails before filing. Indeed, Browning Marean, a partner in DLA Piper Rudnick Gray Cary in the US, recounts how a US law firm in a high-rise building had created such a vast amount of paperwork in storage rooms that the fire department determined the entire building was leaning in that direction!

The Need for Electronic Storage, and a Usage Policy
Printing and storing e-mail not only wastes space, it obviates the ability tosearch for individual messages quickly or to enforce an e-mail policy. Nor is it in line with rules and regulations for information retention. Yet, while the Law Society has made it clear that it is no longer necessary to print e-mails, storage on back-up tapes is in my view equally problematic. It is time for law firms to put into practice more efficient approaches to electronic document retention, namely e-mail archiving.

Hard copies, even those stored in a records management system, and data stored on back-up tapes take significantly longer (and cost more) to search and retrieve than data held in an electronically archived version. Saving a paper copy of the original provides inadequate back-up and does not guard against unforeseen contingencies such as a natural disaster. Moreover, it does not preserve all of the metadata associated with the e-mail – such as who the original author was, whether it has been modified and more.

Rule 13 of the Solicitors’ Practice Rules requires that principals ensure that their practice is supervised and managed so as to ensure compliance with the various Acts and regulations governing solicitors. A number of recent high profile cases involving law firms and their staff clearly illustrate the need for an e-mail policy that guides users as to what to save and what to delete – and the wisdom of ensuring that the policy is actually adopted in practice. Your firm’s e-mail policy should cover internal as well as external e-mail. Regulatory pressures  mandate a policy in the case of external e-mail and  best practice requires one in the case of internal e-mail. With an effective e-mail archiving system, the policy can be enforced up front, leaving less to chance from misinterpretation by users.

Once developed, all partners, consultants and staff (temporary and permanent) should be informed of the policy and educated on its practices. It should then be reviewed regularly to ensure it stays fit for purpose.

As I have indicated, some elements of business regulation, such as those arising from the Data Protection Act, the Freedom of Information Act and Sarbanes-Oxley (governing UK companies that list in the US), now require structured electronic retention of information, forcing firms’ clients to develop and vigilantly enforce information retention policies for e-mail. Firms need to follow suit.  Recent updates to the Civil Procedure Rules put the onus on law firms and fee earners of those firms to advise clients on best practices for disclosing electronic information; that information needs to be part of a corporate retention procedure and process. If the firms themselves do not practice what they preach, they cannot very well act as an authority – and shouldn’t be surprised when their clients struggle to locate records required for disclosure in a legal matter.

Storage, retrieval and regulatory issues should convince firms to implement electronic archiving.  But, in case there is doubt, it is now clear that printed e-mails are no longer required for legal reasons. In November 2005, the Law Society published its revised E-mail Guidelines for Solicitors. For the first time, the guidelines state explicitly that firms need not print e-mails if, instead, their e-mail archives are held in a suitable managed electronic storage system.

Archiving Solutions
There are proven archiving solutions on the market that ensure that the risks of e-mail are managed, and its full benefits realised. The Law Society’s guidelines encourage firms to consider actively monitoring the availability of such systems.

So how do law firms develop a solution that’s right for them?

Quocirca Ltd, the technology analyst firm, offers some advice:  “Adapting IT to support the requirements of good corporate governance is not rocket science. It all comes down to keeping information that needs to be kept and being able to find stored data as it is needed.” Information retention is fundamental to all businesses, regardless of the sector, and firms should find a robust, scalable and proven archiving system – you don’t need one that is tailor-made for law firms.

Such an archiving system allows the firm to apply its e-mail policy to offload messages from servers automatically, based on any combination of parameters such as age, size, status, sender and location. These messages are then moved into a scalable, searchable archive. The entire archive process is essentially transparent to secure users who can still access and work with their e-mail through shortcuts or ‘stubs’ left in their inbox.

Removing the e-mails to the archive reduces message storage on the Exchange server and reduces the likelihood of the server going down. Ideally, space is also saved in the archive server through compression of messages and attachments and through ‘single instance storage’ in which one copy of each message is saved no matter how many users have access to it. Some archive solutions go one step further with a feature called “attachment splitting,” saving only a single instance of each attachment regardless of the number of different messages that may have contained it. These optimisations substantially improve e-mail storage efficiency compared to e-mail servers, and the benefit is even greater when applied to personal archives.

Cost savings generated by e-mail archiving can be dramatic and are readily quantified. The storage savings, back-up savings, administrative efficiencies and user productivity are all fundamentally driven by the optimisations that e-mail archival provides. Just think – all messages have a single sender, and many have multiple recipients. A typical value for the number of mailboxes in which a message is stored is four. Similarly, an attachment found in a given message has a one in three chance of being attached to another message.

Market Harborough Building Society (MHBS), a building society with 100 users in Market Harborough, used e-mail archiving with single instance storage and compression to achieve major results. The building society has drastically reduced storage size in its Exchange database, and for nearly two years – combined with the e-mail archive server – the database was at a lower storage capacity than prior to archiving. Before e-mail archiving was installed, mailboxes and public folders accounted for 4.5 gigabytes of space on the Exchange database – despite two more years of e-mail, that size has only in the past year surpassed the original size of Exchange.  Moreover, the building society is now compliant with all governing regulations. While not a law firm, MHBS’ problems are comparable to those concerning any small to mid-sized firm, which could expect to achieve similar results.

Although the price tag of an e-mail archiving solution was not always in reach for smaller firms, this is changing for on-site and hosted options. Certainly a full-featured compliance archiving and mailbox management solution is available to small and medium enterprises that use Microsoft’s Hosted Messaging and Collaboration platform worldwide at an affordable price.

The Law Society further advocates the importance of a proactive e-mail policy to help ensure the proper management and supervision of data, including compliance with rules of professional conduct and statutory requirements. In its recently revised guidelines, the Society acknowledges the need to retain – in electronic format – e-mail records that are under statutory retention periods or deemed “significant and substantive.”  Additionally, the Solicitors’ Practice Rules 1990 require that firms keep full and accurate records of all client-matters. So if electronic e-mails are records, a firm’s e-mail policy should give consideration to how those e-mails are included in the firm’s electronic client-matter file management system. As firms deploy e-mail archiving, it is important to take into account how the archiving software integrates with the document or records management systems.

Litig, the Legal IT Innovators’ Group in the UK, recently completed a draft paper, entitled “A Concise Guide to the Management of Electronic Documents,” that tackles the complex regulations and requirements for management of electronic documents. Peter Owen, Secretary of Litig, says that when the paper is final, “It should be a very considered and full, yet concise guide to the minefield of conflicting legislation. It will also provide a pragmatic summary of the plethora of standards and best practice guides out there.”

E-mail archiving – which began life as a solution for large financial institutions on Wall Street – has evolved to become an  essential tool for all businesses in their bid to control e-mail. For legal firms, which traditionally have relied so heavily on paper, the operational and compliance benefits of switching to an IT-based storage, search and retrieval solution are enormous quantifiable and immediate.

Brian Bennett, a former practising litigator, is legal consultant for ZANTAZ, the global leader in Information Retention and Disclosure Management (IRDM) solutions.