“Had [outside counsel] fulfilled his obligation to familiarize himself with GFI’s policies earlier, the forensic searches and subsequent motions would have been unnecessary.”
In re A & M Fla. Props.[i]
1.1 What happened?
Two companies agreed to a $41 million real estate transaction. However, before the transaction closed, the sellers refinanced the properties in such a way that the buyer would have to assume the seller’s loans. Litigation ensued, with the buyer claiming this maneuver violated the terms of the deal, and the seller claiming that the buyer knew about this upcoming change all along. As such, email messages between the parties during the transaction became critical. However, in the course of discovery, the buyer and their lawyer repeatedly failed to fully search and produce email evidence, and failed to do so in a timely manner. As such, the court fined the buyer – and its lawyers.[ii]
1.2 What went wrong?
The failure to promptly and comprehensively produce required email evidence in this case appeared to come down to a failure on the part of the buyer’s lawyer to fully understand how his client’s email system worked, i.e., where, how and for long email messages were stored. The lawyer also appeared to have little knowledge about the contents of his client’s email policies. Although responsive messages were eventually produced, final production took over 22 months, and was ultimately the basis for the court’s sanctions. In the court’s view, “while the delays in discovery were not caused by any intentional behavior, [the buyer and their lawyer’s] did not fulfill [their] obligation to find all sources of relevant documents in a timely manner,” and thus sanctions were warranted. In this case, it appears that the delays were exacerbated by a series of issues, including:
- Messages that employees moved to archive and deleted items folders were not initially searched, although such messages remained on the email system.
- The sellers questioned the efficacy of the buyer’s email production efforts, as the sellers had several messages in their possession from the buyer’s employees that the buyers had not produced.
- Even when a forensics expert was hired to conduct further investigation into responsive email, he was not told about the archive folders, and thus did not search them. Subsequent searches of the archive folders revealed thousands of additional responsive messages.
1.3 What can we learn?
The time to learn about the intricacies of your email system is not during litigation. The buyers in this case dodged a bullet of even more severe sanctions including the complete dismissal of the case. Their lack of knowledge about their own email system caused them to inadvertently flirt without outright spoliation, which would not have helped their cause in the face of a judge already tired of the frequent production delays.
We can draw an important lesson from this case. In this example, the sellers produced messages sent to them by the buyer, yet according to the court, the buyer failed to produce those same messages. This understandably raised serious questions about 1) the efficacy of the buyer’s information governance program, and 2) whether or not they were intentionally hiding these messages, as the seller claimed. This teaches us that even small failures in one area of our information governance program can cast all of our efforts in a bad light and reduce the persuasiveness of our case.
Other lessons from this case include:
- Formalize and document. Ensure that the operation of your email system is fully and accurately documented. This includes practices related to the retention, preservation, and deletion of email from the system and related systems including those responsible for backup, archiving, and records management.
- Work with your email experts. Ensure that email administrators provide the information that senior IT management needs to understand the email system, and that this information is understood by counsel.
“It raises a question of whether there were other relevant emails in existence at that time but which were also not produced, and there is no satisfactory answer because all emails not archived by the email users had since been automatically deleted from the server.”
Connor v. Sun Trust Bank[i]
An employee of a large bank was fired, and she sued her employer. In the course of litigation, the employee produced an email message from her boss that was critical to her case. However, the bank failed to produce the same email message, “despite its obvious relevance to her claims and [the bank’s] duty to produce it.”[ii] This raised several questions about the bank’s email retention and preservation practices, including its practice of automatically deleting email after a relatively short period of time.
The court found that the bank failed to preserve responsive email messages in its email system, backup tapes, and in the local email archive maintained by the employee’s boss. The latter was not preserved, even though the boss had “a general practice of archiving her email messages . . . weekly,” and had been notified of her duty to preserve.[iii] As such, the court ruled that the bank had committed spoliation of evidence, and it imposed an adverse inference sanction.
What went wrong?
While the maturity of the bank’s information governance program is not clear from the court decision, it seems likely that the program suffered from several problems, including:
- Capturing email records. Failing to provide employees with an easy and routine way to capture email messages that require retention because they are records or preservation because they are responsive to litigation.
- Centralized management. Failing to retain or preserve email in a central, standardized way to enable consistent application of policy, ease of enterprise searching, and other critical capabilities.
- Enforcing the program. Failing to ensure that all employees understood their email preservation obligations, and to ensure that they were fulfilling those obligations through routine education, training, follow-up, and audits.
What can we learn?
All organizations should strive to routinely rid themselves of unnecessary content – including email – that has neither a records retention or preservation requirement. There is nothing inherently wrong with email policies that automatically delete unwanted email – provided that there is a mechanism for required email to be retained or preserved. Relying on local email archives (such as .psts and .nsfs) is rarely an effective approach, as it complicates (or even makes impossible) the ongoing management of those messages. Failing to implement effective retention and preservation mechanisms – particularly in the face of email auto-delete policies – can result in claims that evidence was illegally destroyed (as was the case here).
It’s important to note that the court did not find any inherent fault in the company’s reliance on employees to identify and retain email; but rather in its failure to ensure that it was done properly. Organizations need to quickly issue and enforce Legal Holds so that email evidence is not disposed of as part of routine records management operations.
Just how painful can email mismanagement be in court?
Getting email management wrong can be very costly in the context of litigation. For example, in Starbucks v. ADT, it was estimated that producing email from an “old” archiving system would cost $834, 285.[iv] One recent industry study put the cost of e-discovery for a typical lawsuit at $3.5 million,[v] and yet another found that some Fortune 200 companies “reported average per‐case discovery costs ranging from $2,354,868 to $9,759,900.”[vi]
[i] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[ii] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[iii] Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 – Dist. Court, ND Georgia, Atlanta Div. 2008
[iv] Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009).
[v] Institute for the Advancement of the American Legal System at the University of Denver, “Electronic Discovery: A View from the Front Lines,” 2008.
[vi] Statement Submitted by: Lawyers for Civil Justice; Civil Justice Reform Group; U.S. Chamber Institte for Legal Reform, “Litigation Cost Survey of Major Companies,” submitted to the Committee on Rules of Practice and Procedure, Judicial Conference of the United Stats, at the 2010 Conference on Civil Litigation, Duke Law School, May 10-11, 2010.
Email has been a part of our business lives for a long time – at least thirty years. While the basic functionality of email hasn’t changed much since the early 1970s, the way we use it has. From the first tentative, “terse and imperfect” messages sent by Internet pioneers like J.C.R. Licklider[i], to email messages used for effectuating real estate transactions,[ii] executing contracts,[iii] firing employees,[iv] filing documents with regulators,[v] and thousands of other business functions, email is an essential part of how do business.
And yet, we still haven’t figured it out.
For most of us, if the email stops, the work stops. However, many of us still treat email messages as the second-class citizen of our information governance program – ignored, tossed, unmanaged. Nowhere is this gap more obvious than in the courts. Here, our email failures become very real and very painful – laid out for the world to see in the harsh black and white of court opinions, media coverage, and the relentless and ruthless blogosphere. The courts are where our Friday afternoon meeting-room discussions and head shaking about the out-of-control email system; about how so-and-so has email messages going back to the 90s; about how we should really do something about all those email backup tapes; take on a new and painful dimension.
In the past few years there have been some blockbuster cases involving email – large enough, one hopes, to gain the attention of senior managers in every industry. These cases, such as Judge Scheindlin’s series of Zubulake decisions[vi] and her recent Pension Committee opinion,[vii] set new standards for the way we manage email and other information. Others, like Coleman Holdings v. Morgan Stanley[viii], attracted attention for their eye-popping monetary sanctions.
In the coming weeks, I am going to write about some of these cases, and what they teach us about email management and information governance.
The cases I have chosen to focus on are not important because they are exceptional. Rather, they are important because they are commonplace.
Today, looking for cases that speak to email management issues is like dipping your hand into a river. Every day you can find email management issues being considered by a court, regulator, auditor, or other “finder of fact” in jurisdictions across the globe. The cases I’ve selected are designed to illustrate key points about email management, and to illustrate the intensity and depth to which email issues are considered by the court today. The intention of discussing these cases is not to embarrass or single out a particular institution. In fact, given the plethora of email-related challenges occurring daily before the courts, it would be difficult to make the case that any particular organization’s failings are unique. Instead, the purpose of examining these cases is to glean important lessons for all of us about email management.
Case Number 1: Producing email may be hard, but do the courts care?
“It seems to me that a ‘costs, time and effort’ argument involving email is the same as when hard copy documents are in issue. For example, the cost, time and effort to produce hard copy documents which are disorganized or stored in various places could also be considerable.”
GRI Simulations Inc. v. Oceaneering International Inc.[ix]
Key employees of a global engineering firm accepted employment offers from a competitor. When they left the firm, their employer alleged that they took proprietary software and other intellectual property with them, thereafter using it to help the competitor build a new product, resulting in $8 million in damages. In the ensuing litigation, email messages formed a critical part of the evidence. However, the defendants argued that they should not have to produce their own email messages because it would be too “time consuming” and “expensive.”[x] The court disagreed.
What went wrong?
When it came time to search, find, and produce email messages responsive to the litigation, the defendants found their email system lacking. Not only did the system make it “inherently difficult to conduct email searches,” but searching archived email was not possible without physically accessing each archive location across the globe. As a result, the company stated that it, “may be difficult to ensure that all archives are searched.”
Furthermore, a company lawyer testified that she couldn’t explain why email messages sent to several employees were found in the mailboxes of some employees, but not all.
As a result of all this confusion and difficulty surrounding email, the defendants argued that they should not have to produce responsive email. The judge disagreed, writing that organizations shouldn’t expect special treatment around email discovery simply because information is in email form: “it does not appear to me that searching email archives . . . is inherently more onerous or expensive than conducting manual searches for hard copies of documents. In fact, it could be easier.”[xi] That is, if the email is well-managed, which the court apparently believed was not the case here.
What can we learn?
Judging by surveys like AIIM International’s email management “Industry Watch,” which found that a majority of respondents have little confidence in their email program,[xii] most organizations have a long way to go when it comes to email management. Although the business cost of email mismanagement may be hidden, or accrue slowly, email management flaws quickly take center stage in litigation.
There are several lessons to be learned from this case, including:
- Local email archives. Don’t allow employees to create local archives of email (AIIM’s survey found that almost half of organizations have no policy on this topic). Turn off the ability to create .pst and .nsf files., and look for smart technology like content analytics to help you clean up the ones that you already have.
- Don’t expect mercy for bad email management. Don’t expect the court to take mercy on you because you have been doing a poor job of managing your information. Email has been around for over three decades. That’s a long time to get it figured out. Courts and regulators in all jurisdictions are demonstrating diminishing patience with organizations that do not take email management seriously.
- Is your email system e-discovery-ready? Is your approach to email management and archiving e-discovery ready? In other words, could you easily and quickly conduct searches across the entire system for all email messages generated by specific employees, or containing specific keywords? The AIIM survey found that 45% of organizations allow employees to keep email in personal folders – “unshared, possibly un-findable and at considerable risk of random deletion.”[xiii] Remember, you may need to be able to do this for all email, even the stuff hanging around in decommissioned email systems, file servers, backup systems, and so on.
[i] “One could write tersely and type imperfectly, even to an older person in a superior position . . . and the recipient took no offense. The formality and perfection that most people expect in a typed letter did not become associated with network messages [e-mail], probably because the network was so much faster, so much more like the telephone.” J.C.R. Licklider, Albert Vezza, Applications of Information Networks, Proc of the IEEE, 66(11), Nov 1978.
[ii] For example, in the case of Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super., Dec. 11, 2001), where a $2 million real estate sale was negotiated via email. The seller sued the buyer to enforce the contract, and the court found that the email messages satisfied the legal requirement for “a writing” and the typed names at the bottom of the email messages constituted a signature.
[iii] See, for example, Stevens v Publicis S.A., 2008 NY Slip Op 02880 [50 AD3d 253], where a New York appellate court ruled that “emails were signed writings that modify contract.” Coverage at, Kelly O’Connell, “U.S. Court Decides Email Equal a Signature for Contracts,” IBLS, May 2, 2101. Online at, http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2032 See also, Stevens v. Publicis, S.A. and JSO Assocs. Inc. v. Price.
[iv] See, for example, “Radio Shack Lays off Employees Via E-Mail,” Associated Press, March 2, 2007. Online at, http://www.usatoday.com/tech/news/2006-08-30-radioshack-email-layoffs_x.htm
[vi] The most recent of the five decisions being, Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004).
[vii] Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, (S.D.N.Y. Jan. 15, 2010).
[viii] Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., 2005 Extra LEXIS 94 (Fla. Cir. Ct. Mar. 23, 2005).
[ix] GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII).
[xii] “Over half of respondents are ‘not confident’ or only ‘slightly confident’ that emails related to document commitments and obligations made by staff are recorded, complete, and retrievable. “AIIM Industry Watch-Email Management: The Good, the Bad and the Ugly,” AIIM International, May 2, 2009. Online at, http://www.aiim.org/Research/Email-Management.aspx
[xiii] “AIIM Industry Watch-Email Management: The Good, the Bad and the Ugly,” AIIM International, May 2, 2009. Online at, http://www.aiim.org/Research/Email-Management.aspx
What we need, suggests Brenda Zimmerman, a professor at Schulich School of Business in Ontario, is a distinction between the complicated and the complex. It’s complicated, she says, to send a rocket to the moon — it requires blueprints, math and a lot of carefully calibrated hardware and expertly written software. Raising a child, on the other hand, is complex. It is an enormous challenge, but math and blueprints won’t help. Performing hip replacement surgery, she says, is complicated. It takes well-trained personnel, precision and carefully calibrated equipment. Running a health care system, on the other hand, is complex. It’s filled with thousands of parts and players, all of whom must act within a fluid, unpredictable environment.
My wife is a contemporary artist (let’s leave aside the painful discussion of what “contemporary,” and “art” mean), so I spend quite a bit of time in the art world. An article today about FaceBook initially banning – then allowing – a nude drawing from an academic life drawing class caught my eye. I find it nicely ironic that the New York Academy of Art successfully used social media to make the social media giant to squirm. I also think the FaceBook’s rationalization is pretty entertaining. To summarize: “We ban nude photographs, not drawings. But, the the drawing was so lifelike, our reviewer thought it was a photograph, so he banned it. So, take our banning as a compliment.”
Get that guy a job in PR! Oh, wait, he already has one.
In any case, this little story is a perfect representation of why creating and enforcing IG policy is complex. Many suffer from an oversimplification fallacy when it comes to IG. I don’t blame them, its a perfectly reasonable defense mechanism against the true complexity of IG (parts of it are merely complicated; see above). In other words, there is a strong temptation – when faced with the complexity of IG causes and solutions, to claim that there is a single cause, or a single solution. There isn’t.
Further, IG is a moving target, and the problems only get more difficult as an organization grows and matures. This is the problem that FaceBook is, uh, facing. You start off with a simple policy – no nudity on FaceBook – but then one day you wake up and a NY art school is berating your art-hating, censorious ways. Now, like any other organization (company, government, country), FaceBook – as a result of its success – requires a more mature, fine-grained, sophisticated and gasp . . . complicated approach to the issue.
The same thing happens with IG. For example, we typically start off with no email policy. That’s a disaster, so we impose mailbox size restrictions. That’s a farce, so we impose a 90 day deletion policy. That breaks, because now we have PST files growing across the company like black mold and orange ooze, so we turn off PSTs. That breaks, so we get email archiving and turn on unlimited email storage space. That breaks, so we apply our retention schedule in the archive. Etc. etc. etc. Each of these approaches may have worked for a time, but as the company grew, the volume of mail grew, the operating environment got more complex, and a more sophisticated approach was needed.
Maturity models are one way through this – helping us decide how much governance we need, and when we need it. There are plenty of them in the IG space, including ARMA’s, MIKE’s, and several from vendors, so take a look at those. But realize that success and growth will inevitably make your IG environment more complicated. I’m willing to bet that you are already behind – the complexity of your information environment outstripping your ability to manage it. Also, remember that forces outside your control are also conspiring to make the problem more complicated: with more regulation, increasing information volume, and growing complexity in the IT environment a few of those factors.
Now, I don’t want to leave you with the impression that the solution to complexity is more complexity. Some believe that complexity reaches a threshold where the only possible solution is a set of simple, high-level principles (or Checklists). For example, the paragraph I quoted above finishes with, “It takes a set of simple principles that guide and shape the system. For instance: Teach everyone the best practices of doctors who are really good at hip replacement surgery.”
This may be true. But, it still leaves the complicated problem of ensuring that these principles are actually implemented in our technology and human environment.
Email: Reason Enough
“Workers distracted by phone calls, e-mails and text messages suffer a greater loss of IQ than a person smoking marijuana, a British study shows.”
Emails ‘hurt IQ more than pot,’ CNN.com[1. Emails ‘hurt IQ more than pot,’ CNN.com, April 22, 2005.]
IN BRIEF. IG makes sense because it helps organizations take control of email. Solving email should be a top priority for every organization.
According to the study quoted above, using email can be hazardous to your intelligence. Sometimes I think that the same IQ deficit sets in when companies try to manage email. Everything they have learned about information management seems to be forgotten, and they end up with policies that indiscriminately keep every email message, or throw away every message, regardless of what the message contains. Or, they impose volume limitations without the support of a policy that tells employees that some messages have legal implications and cannot be tossed simply because they violate an arbitrary storage limitation. Or, they just do nothing.
Email is how we do business today. Our email systems are full of “a significant number of important emails involving the organization in obligations, agreements, contracts, regulations and discussion.”[2. AIIM International, “AIIM Industry Watch: Email Management, The Good, The Bad and The Ugly,” AIIM International, May 2009.] At the same time, email mismanagement causes so many problems that it’s amazing we use it at all.
IG helps us take control of the email management problem. IG policies provide rules on how email is managed. Retention schedules guide the retention and disposition of email. Information technology helps us implement and enforce the policies. IG training ensures that everyone understand their responsibilities.
Apply IG to your email system – it’s reason enough to invest in an IG program. When doing so, keep the following in mind:
1) Develop defensible policies that align with your approach to information management in other systems
2) Consider turning off the ability for users to export email to local files
3) Ensure that your Legal Hold process covers email
4) Look at email archiving to reduce volume, duplication, and improve centralized management capabilities
“. . . Goldman itself variously described securities as ‘junk’ or ‘crappy’ or ‘s—.’
‘I think that’s very unfortunate to have on email,’ [Goldman Chief Financial Officer] Mr. Viniar said, in a remark that prompted laughter. He quickly amended that to say, ‘it’s very unfortunate for anyone to have said that in any form.’
Goldman is Bruised, Defiant in Senate, Wall Street Journal, April 28, 21010[1. John D. McKinnon and Susanne Craig, “Goldman is Bruised, Defiant in Senate,” Wall Street Journal, April 28, 2010. Online here.]
Is email mismanagement good for society?
I’ve been pondering this question as I watch the Goldman grilling.
Goldman Sachs is just the latest in a long line of organizations brought into the public square and locked in the stockade while senators flog them with damning email messages. We just watched this spectacle with Toyota, and in the last decade we watched it with a multitude of banks, communications companies, auditors, and of course, Enron.
The actors change, but the script is the same: what you wrote in email doesn’t align with what you’re telling us now. These apparently careless email messages purport to tell the real story, unfiltered by legal procedure, scripts, or slick spinmeisters.
In most cases these “smoking gun” email messages could have been defensibly thrown away years before the investigation began. There was no law or regulation requiring their retention, and most companies probably had policies mandating that they go away after a certain amount of time (for example, email messages about audits at Arthur Andersen were supposed to go away after the audit was complete).
Are Email Messages the Unvarnished Truth?
A naive – or at least politically useful – assumption underlying the whole exercise is this: what is written in email is the truth. There is a common sense logic here: what you say when no one is looking is more likely to reflect the truth.
However, this ignores the fact that the average email message in the corporate environment is loaded with subtext – the agenda of the sender; the relationship between sender and recipients; corporate politics; budget battles, and so on. We aren’t guileless automatons when we send email and scheming quislings in face-to-face communications. In fact, several studies have shown just the opposite – we are far more likely to lie in email than we are in face-to-face or even pen-and-paper communication. One recent experiment involving MBA students showed that lying increased by 50% in the email environment.[2. Naquin, C., Kurtzberg, T., & Belkin, L. (2010). The finer points of lying online: E-mail versus pen and paper. Journal of Applied Psychology, 95 (2), 387-394.] We have then, two competing theories about email and the truth. One is that email is the memorialization of spontaneous thought – that it captures raw, unfiltered truth in much the same way that a wiretap would. The other is that email is where we do our best work when it comes to lying, scheming, and manipulating the truth to our own advantage. Take your pick.
I spend a lot of time helping my clients manage email better: let’s make sure that the valuable (and legally required) stuff is kept and the garbage is tossed. The law is clear that we don’t need to keep everything forever, and there are endless business reasons for taking this approach. However, I’m also adamant that fear of the “smoking gun” should not be – and cannot be – the motivation for cleaning up and managing an email system. Getting rid of information just because you think it may be damaging in an audit, investigation, or lawsuit is plainly illegal and should never be contemplated, suggested, or even jokingly proposed with a wink. How many employees have done their employers favors by trying to clean up the past? Case after case teaches us that nobody needs these kind of favors.
In my role as an information governance consultant, I am a believer that email needs to be managed – just like any other corporate asset. To do otherwise is just wasteful and ignorant.
But, there are many folks who are likely ecstatic that corporate America has an email management problem. Plaintiffs attorneys, for one. E-discovery firms, for another. Senators too. After all, email mismanagement provides a rich pool of evidence to comb through – so good, it’s almost as if the company had been wiretapping itself and transcribing every conversation – or so it is claimed.
Email Mismanagement and Justice
In my role as a citizen and taxpayer, I am happy when the government uses its powers to uncover and address corruption – especially corruption that has massive macroeconomic or public policy implications. In that sense, email mismanagement can be very helpful to the public interest because email evidence often contains unique and useful evidence.
From this perspective, I would urge every organization on the planet to keep managing email the way you are today. Make sure you expeditiously execute on the following action items:
- it’s absolutely critical that you write a beautiful policy and then don’t enforce it
- allow employees to create PST files as they see fit
- buy some software to solve the problem, but don’t force anyone use it (the tax advantage of depreciating unused software licenses is awesome!)
- turn a blind eye to email stored on C: drives, shared drives, thumb drives, and forwarded to home computers
- make sure that IT is aware of rampant employee use of Gmail, Hotmail, and other free email services at work, but make sure they don’t do anything about it
- randomly fire some people when they do bad things in email, and let others keep their job (this is important for keeping your employment lawyers entertained)
- make sure that at least some employees are printing email to retain it
- keep a copy of every email message on backup tape, “just in case”
- make sure that you senior executives ignore any and all email policies (the courts and regulators just love inconsistency)
- if you bother to do any kind of records retention in email, make sure it is utterly inconsistent with your retention schedule and with the way you manage every other kind of data in your organization
- you certainly can’t trust employees to make retention or deletion decisions, so it’s probably easier just to have them do nothing
What’s the Down Side?
If I were a shareholder or employee of a firm in the hot seat due in part to email mismanagement, I would find it harder to see it as a good thing. Shareholder value is wiped out, jobs are lost, economic output destroyed. This is not good for shareholders or employees, nor is it good for anyone else.
The routine mismanagement of an asset, i.e., business information and records that just happen to be in an email system instead of a filing cabinet – is not a good thing and it should be be tolerated by business owners, boards, employees, or anyone with an interest in the health of an organization. Nor should it be encouraged or expected by outside parties, including courts and regulators. I’ve had discussions with attorneys in the federal government who believe that keeping all information forever is a trivial matter. “Storage is cheap,” they say. This is the attitude of someone unfamiliar with the realities of enterprise IT, and I’m not going to unpack the reasons this doesn’t work today.
What is the Real Impact of Email Mismanagement on Justice?
In addition, email mismanagement is a clear threat to justice in civil litigation. The unnecessary retention of information causes an almost criminal waste of money and time in big cases. We recently completed a study that found, in a multi-year litigation involving terabytes of information, nearly 70% of all the information preserved, collected, and reviewed was junk, i.e., information that the company could have legally tossed years before the litigation began. The hard cost of rampant information mismanagement in just this one big case (one of dozens for the client): over $10 million. Email mismanagement results in millions and millions of dollars being thrown away, providing no value to the institution in return. Aside from the money, is getting to the truth of a dispute easier or harder when both sides are wading through millions – or even billions – of irrelevant email messages, documents, and assorted business junk?
So, is email mismanagement good for society? I guess the answer depends on which end of the telescope you’re looking through. On balance, I think not. But, I hope that at least some of you disagree and continue to ignore email management. After all, headlines like the ones we saw last week help to put food on my table.
As if retaining, deleting, and producing email messages wasn’t challenging enough, now we have an exciting new tool[1. Yes that’s sarcasm] that allows private conversations to occur around public email messages.
Bccthis is a tool that embraces the fact that private conversations often form around public streams. They’ve created an Outlook plugin, a Twitter web-app, and soon, a BlackBerry application, to streamline these types of conversations.
The Outlook plugin adds in a separate body and recipient field to a message. The Twitter app — via a bookmarklet — lets you bcc people on a tweet in the form of direct messages. [emphasis mine]
My head hurts trying to think through the implications of this innovation[2. Yes, that’s sarcasm too.]. Isn’t this just an invitation for employees to create the kind of off-the-cuff personal opinions about a company’s products and services that always provide the case-ending smoking gun, á la, “Can I look forward to my waning years signing checks for fat people who are a little afraid of some silly lung problem?”[2. Email reportedly from drug company exec embroiled in Fen-phen litigation. See here for more information on the quote and here for background on the litigation.]
OK, so the idea behind this product seems pretty cool. But we all know that it will be implemented without any thought given to the information governance implications. Just like email itself.