E-mail and Records Management in the Legal Environment

By Kurt Thies
November 01, 2003

Law firms have historically recognized the need to keep all legal matters in some kind of permanent file. Therefore, the position of “record manager” is well known. However, the definition of a “record” has expanded in scope to encompass all computer-generated documents. Importantly, that now includes e-mail and e-mail attachments.

This article will explore the differences between records and documents, the unique challenge e-mail represents and issues to be aware of when setting up a cutting edge records management system.

Document v. Record

To understand the distinction between records and documents, we need to look at the lifecycle of the information.

Documents often go through drafting, revision, distribution, collaboration and review. In fact, a document may exist its entire lifecycle as a document and never make it to the legal threshold where it needs to become a record.

A proposed agreement that is drafted, discussed, revised, contemplated and eventually never pursued, for example, may remain a document until it is no longer considered of informational or business value to the organization – and therefore can be destroyed. However, if the agreement is acted upon, used to obtain consent of both parties and consummated (usually expressed by both parties signing the agreement), it has crossed the boundary where it could be used as evidence in court and should be classified, indexed and stored by the organization so that it is a record.

This creates an important responsibility for firms that want to protect themselves and their clients: distinguishing between records and non-records. Useful records must be maintained and extraneous documents need to be purged. Keeping documents that do not need to be records adds unnecessary costs, burdens administrative staff, overloads both computer storage systems and warehouses where boxes are kept ' and creates additional liability issues when something must be retrieved to address a court order.

Traditional Records Management Systems

Records management systems were originally created to be a permanent repository of all physical legal records. The software helped index paper documents stored in an office or warehouse. These systems promoted operational efficiency by reducing the time and manpower required to classify and locate records. They also helped manage and reduce storage costs by eliminating duplicates.

As the use of personal computers exploded, the ability to manage electronic records such as text files, spread sheets and scanned documents was added. Both physical and electronic records were centrally stored ' physical records in storage rooms and electronic records on company servers. Because records were easily accessible in the back office, it was efficient to have a records department manage everything. These systems weren't designed to handle records that reside only on individual desktops.

E-mail: The Big Challenge

But now the legal profession faces a huge new challenge: e-mail. The number of items being created daily in this category in American companies is daunting. Research has established that:

Almost 9 billion e-mails are sent every day in the United States
Business users spend more than two hours on e-mail each day
More than half of all business users check e-mail at least six times a day
Business users spend about an hour each day organizing, filing and deleting e-mail messages

E-mail represents the most significant new challenge to records management, due to its overwhelming proliferation and unique nature. Unlike most electronic records, e-mail resides on the desktop of everyone in an office. These mushrooming files are not easily accessible by records managers. In fact, it can take a small army of workers of a firm days or even weeks to physically recover all the relevant e-mail records from each desktop in response to discovery requests.

The alternative is for the records department to print out e-mail messages and manually classify them as physical records in the client file, a time-intensive task.

Because of its unique nature, e-mail is increasingly a focus of attention, especially in the legal discovery process. Several court rulings have established that e-mail is subject to the same rules of discovery as traditional paper records.

The courts have also determined that a right to privacy does not protect e-mail created on a company's e-mail system. Any e-mail that is evidence of an organization's operations and has value requiring its retention for a specific period of time is considered a record. E-mail to and from senior management proved to be a focal point of the Government's case during the U.S. Department of Justice antitrust suit against Microsoft.

E-mail Records Issues

When setting up an e-mail records management system, several issues should be taken into consideration:

E-mail should conform to the same management policies and procedures that apply to all other records
Just like other documents, not all e-mails are records. Some will be irrelevant or of a personal nature and should be excluded from the records system
E-mails are created, received and saved at the desktop. All employees must be educated on the organization's records policies and procedures
E-mail consists of both the text and the metadata (contextual information hidden in e-mails). Courts can require that electronic copies, not just paper printouts, be submitted for discovery.
E-mail should be stored in an uneditable format, in a centralized repository, to facilitate search, retrieval and disposition. The destruction of these records should be in accordance with the firm's records retention policy, under the guidance of the firm's records manager.

The Answer

The need to manage e-mails as records requires two overall changes to a company's approach to records management.

Companies must apply records management software to every desktop, rather than maintaining it as a backoffice application.

All documents that need to be managed as records, including e-mail, must be placed in a centralized repository in an uneditable state.

Firms should look for a desktop records management system that requires minimal staff training. Otherwise, users will resist their new records management responsibilities and try to work around the system. That means, first finding software that has a well – designed interface that allows users to classify an e-mail record in seconds.

It is also important to be sure that the system integrates with popular e-mail systems like Outlook. Busy lawyers and senior executives will only use a system that takes a couple clicks to use, a few minutes to learn and works directly from their e-mail program.

Another significant consideration is the proper disposition of electronic records. To promote responsible records destruction procedures, it is critical that electronic records are stored, in an uneditable format, in a centralized repository. Each item should be classified and a destruction eligibility timeline identified, in accordance with the firm's records retention guidelines. The records manager, in compliance with the firm's records retention policy, should carry out the destruction process.

Many systems claim to manage electronic records, but simply create links to editable records stored or archived in various locations throughout the firm. This creates problems for records managers and users alike. When record locations are changed, saved links may be deemed useless or records may be deleted by other users.

A complete records repository should provide an easy-to-use, structured system for the classification, storage, retrieval and disposition of all records, both physical and electronic, including e-mail and e-mail attachments.

Once a firm finds a system that meets all these criteria, it's a matter of training employees to know what needs to be saved and how to send documents to the company repository.

The Payoff

A law firm that installs a records management system with e-mail capabilities on the desktop realizes many benefits. The firm will see reduced discovery costs associated with litigation because the system provides structured access to relevant records without the inclusion of non-records or records appropriately destroyed. The software will also reduce the risk of complications in litigation because it provides a consistent and systematic method for the retention and destruction of records, with a clear audit trail of the disposal process.

Kurt Thies [email protected]

Law firms have historically recognized the need to keep all legal matters in some kind of permanent file. Therefore, the position of “record manager” is well known. However, the definition of a “record” has expanded in scope to encompass all computer-generated documents. Importantly, that now includes e-mail and e-mail attachments.

This article will explore the differences between records and documents, the unique challenge e-mail represents and issues to be aware of when setting up a cutting edge records management system.

Document v. Record

To understand the distinction between records and documents, we need to look at the lifecycle of the information.

Documents often go through drafting, revision, distribution, collaboration and review. In fact, a document may exist its entire lifecycle as a document and never make it to the legal threshold where it needs to become a record.

A proposed agreement that is drafted, discussed, revised, contemplated and eventually never pursued, for example, may remain a document until it is no longer considered of informational or business value to the organization – and therefore can be destroyed. However, if the agreement is acted upon, used to obtain consent of both parties and consummated (usually expressed by both parties signing the agreement), it has crossed the boundary where it could be used as evidence in court and should be classified, indexed and stored by the organization so that it is a record.

This creates an important responsibility for firms that want to protect themselves and their clients: distinguishing between records and non-records. Useful records must be maintained and extraneous documents need to be purged. Keeping documents that do not need to be records adds unnecessary costs, burdens administrative staff, overloads both computer storage systems and warehouses where boxes are kept ' and creates additional liability issues when something must be retrieved to address a court order.

Traditional Records Management Systems

Records management systems were originally created to be a permanent repository of all physical legal records. The software helped index paper documents stored in an office or warehouse. These systems promoted operational efficiency by reducing the time and manpower required to classify and locate records. They also helped manage and reduce storage costs by eliminating duplicates.

As the use of personal computers exploded, the ability to manage electronic records such as text files, spread sheets and scanned documents was added. Both physical and electronic records were centrally stored ' physical records in storage rooms and electronic records on company servers. Because records were easily accessible in the back office, it was efficient to have a records department manage everything. These systems weren't designed to handle records that reside only on individual desktops.

E-mail: The Big Challenge

But now the legal profession faces a huge new challenge: e-mail. The number of items being created daily in this category in American companies is daunting. Research has established that:

Almost 9 billion e-mails are sent every day in the United States
Business users spend more than two hours on e-mail each day
More than half of all business users check e-mail at least six times a day
Business users spend about an hour each day organizing, filing and deleting e-mail messages

E-mail represents the most significant new challenge to records management, due to its overwhelming proliferation and unique nature. Unlike most electronic records, e-mail resides on the desktop of everyone in an office. These mushrooming files are not easily accessible by records managers. In fact, it can take a small army of workers of a firm days or even weeks to physically recover all the relevant e-mail records from each desktop in response to discovery requests.

The alternative is for the records department to print out e-mail messages and manually classify them as physical records in the client file, a time-intensive task.

Because of its unique nature, e-mail is increasingly a focus of attention, especially in the legal discovery process. Several court rulings have established that e-mail is subject to the same rules of discovery as traditional paper records.

The courts have also determined that a right to privacy does not protect e-mail created on a company's e-mail system. Any e-mail that is evidence of an organization's operations and has value requiring its retention for a specific period of time is considered a record. E-mail to and from senior management proved to be a focal point of the Government's case during the U.S. Department of Justice antitrust suit against Microsoft.

E-mail Records Issues

When setting up an e-mail records management system, several issues should be taken into consideration:

E-mail should conform to the same management policies and procedures that apply to all other records
Just like other documents, not all e-mails are records. Some will be irrelevant or of a personal nature and should be excluded from the records system
E-mails are created, received and saved at the desktop. All employees must be educated on the organization's records policies and procedures
E-mail consists of both the text and the metadata (contextual information hidden in e-mails). Courts can require that electronic copies, not just paper printouts, be submitted for discovery.
E-mail should be stored in an uneditable format, in a centralized repository, to facilitate search, retrieval and disposition. The destruction of these records should be in accordance with the firm's records retention policy, under the guidance of the firm's records manager.