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Can IT and Legal Agree?Figuring Out an Email Retention and
Deletion Policy
Mark Diamond, Contoural
Copyright © 2009 Mimosa Systems, Inc.
Mark Diamond, Contoural
Bill Tolson, Mimosa System
Moderated by Tom Duggan, InsideCounsel
July 21, 2009
Legal Information Is Not Legal Advice
Contoural provides information regarding business, compliance and litigation trends and issues for educational and planning purposes. However, legal information is not the same as legal advice -- the application of law to an individual or organization's specific circumstances. Contoural and its consultants do not provide legal advice. Clients should consult with competent legalcounsel for professional assurance that our information, and any interpretation of it, is appropriate to each client's particular situation.
Disclaimer
CONTOURAL CONFIDENTIAL Copyright © 2008 May not be distributed or reproduced without written authorization.
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Getting Stuck
Sound Familiar?
� IT interested in e-mail archiving� Archiving put on roadmap� IT asks Legal for policy, direction, funds
CONTOURAL CONFIDENTIAL Copyright © 2008 May not be distributed or reproduced without written authorization.
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� IT asks Legal for policy, direction, funds� Legal says we need to decide?� Committee formed� Committee drafts Charter� Committee meets� Committee meets� Committee meets
� Committee meets
IT Vocabulary
�Active Directory
�Fuzzy Logic Searches
Legal Vocabulary
�FRCP & FRE
�ESI
Are we speaking the same language?
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�Fuzzy Logic Searches
�Single Instance Storage
�Journaling
�Boolean Expressions
�ASP/ISP
�Cloud Computing
�ESI
�Legal Hold
�Discovery Protocol
�Custodian of Records
�Chain of Custody
�Spoliation
The Elephant in the Room
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� Legal vs. IT Expense� Whose Requirements� First to Raise Hand Pays?� Who is going to engage the business?
What Type of Document is E-mail?
� E-mail is a type of medium� Sometimes misclassified as a record type
� E-mails are business documents, some of which are business records
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are business records� A Business Record is defined broadly as any original document or object that supports an organization’s business activities and decisions.
� A Convenience Copy is defined as a copy of a document or information that has been created or kept only for convenience or reference.
� Both Records and Documents may be subject of litigation or regulatory discovery
Aggressive Deletion Drives Underground Archiving
WWW
Removable CDs,
DVDs
Printer
iPod Employee Personal Home PC
Recipient E-mail
System
Employee
Remote
Offices
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“The hot temper leaps over the cold decree.” (Shakespeare, Merchant of Venice)
Company Desktop
or Laptop
WWW
Network File
Server
PC Local Hard
Disk
Gmail, Hotmail, Yahoo, etc.
Blackberry or
PalmMail Server: Automatic
Deletion
USB
Drives
Backup Tape
Employee
Underground
Archiving
Risk of Over-Saving Electronic Documents
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Collection� $1,500/PC� $1,000/GB network files
Processing/Culling� $1,000/GBOutside DocumentReview� $200/hour per person @ 40 items/hour = $5/file or e-mail
� 50% of cost of litigation is discovery� Majority of discovery is of electronic documents
Source: Socha Consulting
Case Study: Using “Off the Shelf” Schedules
Company’s
Record
Name
Document Names Department
Managing
Record
Record
Medium
and
Location
What the Schedule Said:
Regulatory Requirement: Employee Insurance Information, 7 years
What Companies Actually Had:
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Location
Company A Insurance Records
Policies, AmendmentsApplicationsInsurance Certificates
Risk Management
Paper
Company B Benefits ApplicationsInsurance Premium StatementsActuarial Reports
HR Electronic or Paper
Company C InsuranceClaims
Industrial Accident & InjuryReportsOSHA LogsClaim Files
Facilities Email
The Five Second Rule
� Employees will spend up to five seconds manually classifyingdocuments
� If it takes longer, they will use thefive seconds to subvert the
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five seconds to subvert the classification system
� Given the choice, most employees optfor maximum retention for documents they wantto preserve
E-mail File Plans Make It Easier
Email Retention Bucket Sub-folder Record TypeRecord
Category
Retention
Period
Inbox Incoming Email 90 Days
HQ Finance
Record Retention and Deletion Policy
and Schedules
E-mail File Plans
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Inbox Incoming Email 90 Days
Sent Outgoing Email 90 Days
Working Documents Projects, Templates, Correspondence,
ReferenceVarious 3 years
Business Records Reconciliations Account Reconciliations FIN1000 7 years
Indefinite Reporting Position Papers, Technical Accounting
Support Documents, SOX Compliance
Reports, Government Reporting (non-
SEC)
LEG4000 10 years
Audit Reports External Auditor Reports FIN2000 CR+10
Investments Investment Statements FIN3000 Act+7 years
Investments Investment Work Papers FIN5000 Act+10
yearsLegal Legal Correspondence LEG1000 ATA + 6
yearsCleanup and Review Working or Business Items after
retention has passed
45 Days
E-Mail Classification Options
• All mail is classified and retained equally
UniversalUniversal
• Sender or recipient group can classify messages:• Executive communication and governance• Key organizational roles (HR, Finance, Legal)
Role-BasedRole-Based
• Users classify messages within the email system
Manual/User-BasedManual/User-Based
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• Users classify messages within the email system• Managed Folders• Toolbar buttons• Drag and Drop• Pop-up windows
• The message content itself can be used as a source of metadata• Subject, content, attachments• Considerations: Fuzzy matches and misspellings, obfuscation and encryption, escalating complexity and processing
• Not attachments
Automatic/Content-BasedAutomatic/Content-Based
Creating a Coordinated Corporate Initiative
• Finance
• Contracts
• Sales
• HR
• End-users
•Audit
•Compliance
•Records Management
ComplianceBusiness Productivity
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• IT Infrastructure
• IT Applications
• Inside Counsel
•Outside Counsel
TechnologyLegal
Case Study 1
Who: Mid-sized Construction Company – 500 employees distributed across U.S.
Litigation Profile: Frequent Employment and Contract, Occasional environmental and use rights
What: One year auto archive for all employees. Selected employee drag and drop to big bucket managed folders for specific records
Strategy: Train users, create trusted custodians, eliminate PSTs from individual workstations, Enterprise search from central repository
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Outcome: 6 month implementation cycle, minimal capital spending, happy users (no lost email) early case assessment, reduced discovery and review costs
Case Study 2
Who: Large Energy Company – 5000 employees mostly headquarters, some remote
Litigation Profile: Frequent employee, contract litigation, substantial (large) regulatory investigations
and class action
What: Dedicated email archive from major vendor, emphasis on long term retention of all email for key custodians, reducing costs, enterprise search
Strategy: Create 2 classes of users, capture 100% for key custodians, “drag and drop” for up to 3 years, 90 day deletion of Inbox and sent folders for the rest
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up to 3 years, 90 day deletion of Inbox and sent folders for the rest
Outcome: 12 month implementation cycle, major capital spending, transparent capture for execs, decision makers, manageable retention for rest of work force
Archiving Really Isn’t About Saving…
� Do you know what you have?� Do you know where it is?� Can you search documents?� Can you easily retrieve documents?� Can you save those e-mails that are records?
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� Can you save those e-mails that are records?� Can you ensure you don’t delete what you shouldn’t?
� Can you ensure you delete when you should?� Can you do all the above easily, quickly, defensible and cost effectively?
It’s all about control.
About Contoural, Inc.
Leading independent provider of business and technology consulting services focused on litigation readiness, compliance, information and records management, and data retention strategy
� Attorneys, e-discovery experts, records
managers combined with IT, archiving and
storage specialists on staff
� Average 14 years experience
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� Average 14 years experience
� 10% Fortune 500 as clients
� Sells no products or document warehousing
services
� Bridge gap between legal, business needs
and IT
� Recommended by Gartner, IDC, ESG and
other analysts
� Team located across US
� Engagements across world
Contoural On-site Seminar
Seminar Title: Best Practices for Becoming Litigation Ready – New Requirements, New Responsibilities, New Practices
Length: 2 hours including Q&A
Who Should Attend:� General Counsel � Human Resource, Finance and
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� General Counsel � Associate General Counsel and other in-house legal counsel
� Legal Discovery Team� Records Managers� Chief Information Security Officers� Records Managers
Cost: No charge for qualified prospects
Register: www.contoural.com
� Human Resource, Finance and Other Business Units
� Compliance Officers� Audit� Chief Information Officer� Messaging Administrators� Storage Administrators
For More Information – www.contoural.com
Recorded Webinars� ESI Data Map� Litigation Readiness Roadmap� Litigation Hold
White Papers� E-mail Archiving ROI and Business Case Development
CONTOURAL CONFIDENTIAL Copyright © 2008 May not be distributed or reproduced without written authorization.
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� E-mail Archiving ROI and Business Case Development� How Long Should E-mail Be Save White Paper� Federal Rules of Civil Procedure White Paper� Impact of International Regulations White Paper� Six Steps for Managing ESI White Paper� 10 Best Practices for Archiving White Paper� What IT Can Do If You’re Going to Be Sued White Paper
Articles� E-mail Archiving: Planning, Policies and Product Selection � Are You Ready for New Compliance Rules� Applications to Find and Classify Data
Mimosa Systems
Copyright © 2009 Mimosa Systems, Inc.
NearPoint Live Content Archiving and Retention Policy Management
Admin
End-User
Search
Mimosa NearPoint
eDiscovery
Content
Monitoring
GRIDGRID
Dashboard
Next Generation Architecture for Email
Archiving and Management
Email Information
Management
Retention Management
Mailbox Extension
Recovery
eDiscovery
Archiving
Copyright © 2009 Mimosa Systems, Inc. - Confidential
Continuous
Application Shadowing
Exchange Servers
Indexed Object Repository
Smart Extract
IndexingGlobal Single Instancing
GRIDGRID
SQL Full-text index Files
Flexible, Granular Retention Management
• Fine grain retention and exclusion
• Automated, rules-based classification
• Proactive content monitoring and alerts
• User-driven classification, e.g. based on folders and group memberships
•• Flexible & dynamic - Lengthen and shorten retention periods at individual object level without re-archiving
• Universal, item-level litigation hold across all content sources (e.g. email, attachments, file system content)
• Data protection and archiving style retention policies
• Provides true eDiscovery readiness
� Unified interface to email and file system content
� Folder browse view
� Point-in-time mailbox view
� Mailbox extension with no agents
�
Seamless Unified End-User Access
� PST archival with no stubs in Outlook
� Public folder archival and restore
� Offline retrieval of extended messages
� Hit highlighting to quickly locate relevant content
eDiscovery & Case Management
Content Monitoring Retention
End-user Search
Self-Service Retrieval
Offline Cache
Item-Level Legal Hold Legal Review Workflow and Collaboration
Compliance Reviewand Workflow
Automated, Rules-BasedClassification
Outlook Blackberry
END USER ACCESS NEARPOINTAPPLICATIONS
ECM & Records Management Apps
eDiscoveryReview & Production Apps
Mimosa NearPoint Comprehensive Content Archiving Solution
Content Monitoring & Supervision
Retention & Classification
24
Search iPhone
NEARPOINT PLATFORM
Capture / De-duplication / Data ProtectionFull-text Indexing / Flexible Retention / Mailbox Management
SharePointLaptopsDesktops
FileSystems
Exchange
PST Management Tiered Storage Disaster Recovery
SAN NAS WORM/CAS REMOTE DISK TAPE
SDKSearch,Hold,Export
Collection Apps &Tape Restoration
Why Mimosa? Lowest Total Cost of Ownership
� Proactive eDiscovery readiness� Eliminate expensive forensics and tape restoration
� Reduce legal review costs via early case assessment
� Reduce risk by proactively managing information
� Reduce operational cost� Customers have seen up to 80% reduction in storage for Exchange, file
system, and SharePoint
Copyright © 2009 Mimosa Systems, Inc. - Confidential
system, and SharePoint
� Global de-duplication across all content sources
� Ease of deployment and maintenance
� No journaling required
� End-user productivity� “Super sized” mailboxes
� Seamless Outlook/OWA, file system, and SharePoint integration
� Simple, intuitive search and browse