Until recently, e-mail management was the responsibility of a law firm’s IT department, its principal management goal being to keep this mission-critical system operational 24x7. Unfortunately, IT strategies deal with volume, not content. Administrative policies tend to focus on the firm’s right to monitor e-mail message use and warn against inappropriate content. Neither IT nor administration addresses a law firm’s legal and ethical obligations to protect messages that are business records.

• Definitions vary as to exactly what business records are, but most:
• Provide tangible information (e.g., agreements, decisions, policies, procedures).
• Are appropriate for preservation as evidence because of their business value.
• Are medium-neutral—e-mail messages are business records too.
• Law firms are legally and ethically responsible for the systematic control over their own business records, as well as for those of their clients throughout the records’ life cycle (i.e., creation, distribution and use, maintenance and disposition).

For a law firm, the life cycle of its business records is determined by the statutory and regulatory requirements of countries and states in which it conducts business. For a law firm’s client records, the life cycle is determined according to the firm’s contractual agreement with the client, the nature of the work being done by the firm, and the jurisdiction in which the work is being done. Clearly then, an approach to managing e-mail messages based solely on space management and undifferentiated, long-term preservation does not fulfill a law firm’s records management obligations.

The Principles
Records management principles are being reinterpreted and extended to accommodate the requirements of electronic information. The most relevant ones for the management of e-mail business records are:

Identifying the official e-mail record: Propagation (double-digit growth of message usage), Proliferation (created via system features “Reply,” “Reply All,” transmission of attachments, etc.), and Dispersion (through the interconnectivity of office e-mail messages, web access, instant messaging, PDAs, etc.). These are the three banes of effective message management.

Operational strategies and systems must identify the “official” copy of a record and eliminate duplicates.

Protecting e-mail records to preserve legal admissibility: Admissibility is based on authenticity. Electronic records are deemed authentic based on their “mode (i.e., method by which a record is communicated over space or time), form (i.e., format or media that a record has upon receipt), state of transmission (i.e., the primitiveness, completeness, and effectiveness of a record when it is initially set aside after being made or received), and manner of preservation and custody.” 1

For authenticity, both the content and the structure (metadata) of a message record must be preserved and auditable.

Keeping e-mail records accessible: Users require immediate access to electronic business communications and transactions. Operational strategies must balance the need for immediate, remote access and transferred access (e.g., to RIM devices and PDAs) to e-mail message records vs. the protection of the official message record.

Disposing of e-mail records during the normal course of business: One lesson of the Enron-Andersen affair is that records cannot be destroyed, unless there is a defined standard for destruction based on a published, enforceable, executed, and actively maintained records program and retention schedule. These must be updated to include message record management strategies.

(Under no circumstance should records be destroyed if they are relevant to a potential or actual official investigation or litigation action.)

Disposing of records at the end of their retention period: There is no longer a legitimate business standard to keep client business records forever. The ease with which confidential electronic information can be disseminated and the consequent risk of discovery in a civil litigation or government investigation is too great, even for law firms. Business records should be destroyed at the end of their regulated life. The challenge in message record management is to identify all copies of the message and to ensure that “delete means delete.”

The Operations
Out of the five records management principles presented and the available technologies fall a number of operational strategies:

Defining e-mail business records: Law firms must define what constitutes an e-mail business record and educate their users appropriately. Messages not meeting the firm’s definition of a business record should have very short retention periods. These definitions should be part of the firm’s records retention policy.

Appraising the business value of e-mail messages when issued or received: The determination must be made upon receipt and the messages handled accordingly. It cannot be effectively delegated to a centralized, administrative function. Only authors and recipients can make such a determination.

Naming e-mail message record owners: The “owner” or officer of record is responsible for a record’s retention. Given the complexity of message record management, firms should designate such a position for matter-related e-mail messages. If not an author or recipient, this person should be copied on all potentially relevant matter-related messages and preserve those that meet the firm’s definition of an e-mail record.

Establishing guidelines for public and personal e-mail message folders: Upon issuance or receipt of a message record, the officer of record should move it from his/her Inbox or Sent Items to a client/matter or administrative folder for long-term retention with appropriate security to prevent unauthorized modification or deletion. To enforce the retention policy, firms might adopt an automated process to delete e-mail messages from user Inbox, Sent Items, and Deleted Items folders in a preset period of time after receipt.

Transferring e-mail message records to authenticating and “retentative” systems: Ultimately, message records should be transferred to a system that can preserve their authenticity, track retention and facilitate ultimate disposition. At this point, both document management and records management systems are adding functionality to address these import requirements. The latest versions of both types of systems support the import of message records into an official file. Today, only records management systems have comprehensive functionality to manage long-term retention.

The Technology—RMS Functionality
Given the emphasis in this article on records retention, following is a description of RMS functionality that directly supports the management of e-mail message records. Exact functionality varies by system. Document management systems offer some of these features.

Bulk transfer of e-mail records: The leading systems support the individual or bulk transfer of messages from a message folder to an official folder. RM systems enable users to “declare” one or more e-mail messages in a single transaction. Upon declaration, the message is moved from the message store to the RM system archive in its native format. The authenticity of the message is maintained; it cannot be altered. It is, however, viewable from the e-mail system and can be responded to, forwarded, or copied. These transactions create new messages in the system, which must be separately declared if appropriate.

Duplicate checking: The leading RM systems identify potential duplicates during the declaration process. Depending on the system, the duplicate checking is based on the message header or the header plus the message itself.

E-mail message thread management: Unlike e-mail systems, RM systems do not manage message threads. A consequent operational suggestion, therefore, is to include the original messages in a response and declare the single, composite message into the RM system whenever possible.

Treatment of attachments: RM systems allow users to transfer attachments as part of the e-mail message record, to transfer them as separate records, or both. Users can make this determination for each declaration. E-mail message attachments are stored as PDF files as well as in native format.

Retention period calculation: RM systems calculate retention from the date of a “triggering event” (e.g., the closing of a matter) plus a retention period specified in the firm’s retention schedule. The calculation is usually based on area of law and record type. By declaring messages into the RM system, they are retained for the specified retention period.

Overall Technology Considerations
While technology solutions are being designed and used to address specific records management criteria, it is imperative that a comprehensive solution address all phases of a record’s lifecycle. This includes systems such as backup technologies and operational issues that might not be part of the creation, declaration or distribution of a record, but eventually must be considered as part of its overall disposition.

The Conclusion
The number of e-mail messages sent and received daily is growing exponentially. Message records are increasingly scrutinized and sought after in electronic discovery, and law firms are under increasing pressure to manage both their own and their clients’ electronic records. It is imperative that we apply formal records management policies, procedures and technologies to e-mail messages and other forms of electronic documents.

It is no longer a question of if it should be done. It is a question of when.

Endnote

1. Department of Defense Standard 5015.2, Design Criteria Standard for Electronic Records Management Software Applications, June 16, 2002. This standard, designed for use by the Department of Defense, forms a basis for a common understanding of records management system requirements. Some, but not all, of the criteria identified in this standard are applicable to law firm systems.

Baker Robbins and Company has granted permission to ILTA to edit and print the above article. ILTA can publish the article in any electronic or printed medium without further notice and can grant permission to reprint this version of the article to any other party, so long as the authors and Baker Robbins and Company are acknowledged and the phrase “© 2002 Baker Robbins & Company All rights reserved” is included.

About our authors...

Meg Block and Robert J. Kerr are Shareholders with Baker Robbins & Company. Ms. Block leads the firm’s records management practice. Mr. Kerr is a leader in the firm’s e-messaging management practice. www.brco.com