E-mail Retention
White PaperE-mail RetentionClients often ask “how long do we need to keep our e-mail?” The accurate answer is“it depends,” because e-mail is a medium, not a content type. But if we focus on thecontent of e-mail, the purpose of that content, and the surrounding circumstances, thee-mail retention dilemma can be resolved.Peter SloanMay 2010
OVERVIEWOne determines how long to retain documentedinformation in the ordinary course of business byconsidering the information’s content type (such ascontracts, audit work papers, or I-9 documentation)rather than the medium of the information (such as paper,digital data, or micrographics). While selecting the rightmedia for official records storage is important, it is thenature of the information content that drives how longthe documented information should be retained for legalcompliance or business purposes.And so, the problem with answering what appears to be aperfectly sensible question — “how long must we keep oure-mail?” — is that e-mail is a medium, not a content type.By analogy, an e-mail is akin to information on a piece ofpaper. Just as there is no single correct response to thequestion of how long to keep all paper documents, thereis no satisfactory answer to a question seeking a uniformretention period for all company e-mail.A review of over 50,000 records retention legalrequirements and legal considerations found in thepublished statutes and regulations of the UnitedStates federal system and the fifty states confirms thatthere are virtually no laws that require all e-mail to beretained for a particular period of time in the ordinarycourse of business. Only rare exceptions exist, suchas the requirement that national securities exchangemembers, brokers, and dealers retain all sent and received“communications [i.e., e-mail] . . . relating to its businessas such . . . .” for three years, and for the first two yearsin a readily accessible place. 17 C.F.R. 240.17a-4(b)(4).While a plethora of retention requirements apply to awide range of information that might be found in e-mail,there generally is no blanket retention requirement for allcompany e-mail or other forms of e-communication.But the e-mail retention dilemma can be resolved oncewe focus upon the content of the e-mail, the purpose ofthat content, and the surrounding circumstances. In otherwords, we can answer the e-mail retention question bydividing it into four questions: In the ordinary course of business, how long should weretain record-quality e-mail?In the ordinary course of business, how long should wekeep e-mail that is not a record?How long should we keep back-up of e-mail?How long should we preserve e-mail that is relevant tolitigation or other proceedings?RECORD-QUALITY E-MAILCompanies should have a records management policythat defines what is a record, such as “documentedinformation, regardless of media, regarding the businessoperations of the company that should be retained forlegal compliance or business needs.” The company’srecords retention schedule should identify categories ortypes of records, with suitable descriptions and examples,and with ordinary course of business retention periodsthat satisfy legal requirements and business needs.Only a subset of sent or received e-mail at the companywill meet the policy definition and fall within the retentionschedule’s record types. E-mail and attachments thatdo should be retained as records for as long as indicatedunder the company’s records retention schedule, asappropriate for the particular record type.The problem is that most e-mail applications are welldesigned for efficient and collaborative communication,but not for records management, and certainly not forapplying records retention periods to the various e-mailsand attachments. As a result, record-quality e-mailand attachments should be moved, either literally orfiguratively, out of the e-mail application and into recordsmanagement.Five strategies exist to accomplish this result in theordinary course of business:1. Print and Store with Associated Hardcopy RecordsPrinting record-quality e-mail and attachments topaper allows the e-mail and attachment content to beretained in compliance with the retention schedule’svarious record type retention periods. However, oneloses the associated metadata and the access easeand communication efficiency provided by computerapplications handling digital information.2. Structured Storage Created By The E-Mail UserIn this strategy, the employee e-mail user movesrecord-quality e-mail and attachments into anelectronic file folder structure created by theindividual user. If done well, record-quality e-mailand attachments are separated and segregatedby retention schedule record type, facilitating theapplication of appropriate retention periods, butmaintaining the advantages provided by keepingthe content in digital format. A shortcoming of thisapproach is that different employees will createdifferent structured storage frameworks, resulting ininconsistency across the enterprise.3. Structured Storage Created By The CompanyHere, the departmental function or the company itselfcreates the framework of structured storage options,aligning them with the company records retentionschedule. While this strategy requires more planningthan strategy 2 above, it promises greater consistency,making it practicable for the company to obtain moreconsistent application of the retention schedule torecord-quality e-mail and attachments.4. Electronic Content Management SystemsToday most ECM systems (Electronic ContentManagement), EDMS (Electronic DocumentManagement Systems), and ERMS (Electronic RecordsManagement Systems) are compatible with e-mail andHusch Blackwell LLP 2
attachments. While this strategy requires significantexpense, planning, and implementation, it offers thebest of both worlds. Properly trained e-mail userscan move record-quality e-mail and attachments withrelative ease out of the e-mail application and into aneffective records management structure. At the sametime, the content remains in digital format, it enjoysgreater protection and security, and should also behighly accessible and easily used. Also, if the companychooses to install an e-mail archive application, it willlikely feature or integrate well with these digital contentmanagement tools.5. Artificial IntelligenceAs technology capabilities increase in sophistication,it is becoming possible for some robust tools toautomatically identify record-quality e-mail andattachments and classify them to respective recordtypes, with associated retention periods under thecompany’s records retention schedule. This strategyrequires significant and ongoing expense. And becausesuch systems seek to replace the judgment of individualusers with the operation of technology tools, thoroughstrategic planning and implementation are crucial.Regardless of the strategy selected, the objective remainsthe same — to separate the “wheat” of record-qualitye-mail from the remaining “chaff,” segregating e-mailrecords from the rules applicable to other e-mail andinstead applying records management and recordsretention periods.Note that the above issue is not solved by e-mail archivesolutions. Archive systems do provide several benefits,such as reliable capture of e-mail content and enhancedsearch capabilities. But archive systems require rulesfor categorizing e-mail based on recordworthiness andcorresponding retention periods. The archive must still be“told” how long various types of e-mail content are to beretained, and thus an archive is not a magic bullet solutionto e-mail retention.It is crucial that the company devise and implementeffective training, communication, and reinforcement ofexpectations for the handling of record-quality e-mail andattachments. Because these e-mail records are businessassets, their proper retention and management alsoshould be added to the purview of company complianceassessment.NON-RECORD E-MAILOnce the company has devised an effective strategy tosegregate and properly handle record-quality e-mail andattachments, it will be left with a large volume of electronicmessages and attachments that, in the ordinary course ofbusiness, need not be retained to meet legal requirementsor business needs. Because there is no compliancerequirement or lasting business value for keeping nonrecord e-mail and attachments, in the ordinary courseof business such e mail should be disposed of relativelypromptly.Why should this be so, considering that it seems to costrelatively little to store even significant volumes of nonrecord e-mail? In reality, storage costs are more significantthan one might imagine, due to the tremendous volumeof non-record e-mail that can accumulate. Most CIOs andIT application managers will report that e-mail representsby far the fastest growing data type by volume at theircompany, resulting in additional network storage costsand challenges in accomplishing back-up within theavailable time window each night. Further, some e-mailsystems, such as Microsoft Exchange, may begin tobehave erratically when individual e-mail boxes becometoo large. Yet the cost of e-mail storage is dwarfed by thecost of e-mail retention, both in lost productivity in locatingspecific e-mail in the ordinary course, and even moredramatically in later arising litigation, when the expense oflocating wheat among the chaff truly skyrockets.In short, a company properly committed to compliantretention of record-quality e-mail should be equallyfocused upon proper and timely disposal of non-recorde-mail in the ordinary course of business.So how is this accomplished? Consider the followingstrategies for the non-record e-mail that remains in thee-mail application:1. Establish and Enforce Limits on E-Mail AccountVolumesMany companies establish such limits with one hand,but with the other hand freely create exceptions, orsimply fail to enforce the limits. If this is your strategyfor non-record, ordinary course of business e-mail andattachments, enforce the limits, so that exceptions aretruly exceptional.2. Apply Time Limits to E-Mail AccountsMost e-mail applications allow for time-basednotifications, reporting, or purging of selected e-mailapplication folders, such as the mailbox, sent items, anddeleted items. As you explore the capabilities of youre-mail application, you must also consider companyculture and the needs of the employee users. While toolong of a period (measured by years) will likely fail toyield the desired reduction in non-record e-mail volume,too short of a period (measured by days or weeks) willlikely result in “pack rat” behavior by individual users,motivating them to evade the rules by moving nonrecord e-mail out of the controlled environment.3. Keep Non-Record E-Mail in the Network E-MailApplicationSometimes a company’s IT function “solves” a problemwith accumulating e-mail volume by adopting strategy1 or 2 above, while at the same time tacitly or expresslyapproving the movement of non-record e-mail byHusch Blackwell LLP 3
individual users into PST or other archive files innetwork shares, local drives, or removable media. Thisstrategy may relieve pressure on dedicated networke-mail storage, but it creates a host of other, thornierproblems. In the ordinary course of business, e-mailvolume continues to multiply, but now in locationsoutside of the ready control of the company’s ITfunction. And if and when a preservation dutydoes arise due to pending or impending litigation,the company may now have a legal duty to locateand preserve some of the non-record e-mail andattachments that have been allowed to be blown tothe four winds, resulting in extraordinary expense andbusiness interruption.Therefore, when selecting strategies such as 1 or2 above to limit the volume of non-record e-mail,do so in a way that, to the greatest extent possible,keeps non-record e-mail and attachments within thee-mail application’s control. Further, use technology,policies, training, and compliance activities to minimizeuncontrolled dispersal of non-record quality e-mail andattachments.Once again, an e-mail archive is not a ready-madesolution. Without well-calibrated rules and compliantuse, the archive will end up with a default retentionperiod for all e-mail, which may be too short for variouscategories of record-quality e-mail, causing complianceproblems, and almost certainly too long for non-recorde-mail, exacerbating e-mail volume exposures for thecompany.4. Training and ComplianceJust as effective training, communication ofexpectations, and compliance assessment are crucialregarding record-quality e-mail, they are equallyimportant regarding proper handling of non-recorde-mail and attachments. Once the right strategies areselected to manage the volume of non-record e-mail,the right combination of compliance elements shouldbe deployed.week, and the longest rotation period you will hear willlikely not exceed 30 days. The point is that there is nodisaster recovery purpose served by maintaining e-mailback-up for months or years. In the ordinary course ofbusiness, e-mail back-up should be kept no longer than istruly necessary for disaster recovery.E-MAIL SUBJECT TO A PRESERVATIONDUTYWhen litigation, governmental investigation, or similarproceedings are pending or reasonably and clearlyimpending, a duty arises to preserve documents and data,including e-mail and attachments, that will be relevantto the matter. Preservation duties may arise by statute,regulation, court or agency order, or simply based uponthe circumstance of a pending or impending proceeding.Regardless, when the preservation duty arises, e-mailand attachments within its scope must be preserveduntil the preservation duty expires. This duty generallysupersedes all ordinary course of business handling of theaffected e-mail and attachments, regardless of whetherthey are record-quality or a non-record, and in somecircumstances may even extend to back-up of e-mail andattachments. The company’s legal department shouldhave a well-planned legal hold notification system andpreservation process that, taken together, will identifye-mail and attachments subject to the preservation duty,notify the affected users and data source custodians, andensure that the preservation duty is met.At the same time, companies that practice effectiveordinary course of business management of e-mail willfind that the job of satisfying the preservation duty isless onerous and expensive. It will be simpler to locateand preserve relevant e-mail, and it will be less likely thatlarge volumes of non-record e-mail and unnecessarye-mail back-up will have accumulated. As a result, it willbe far easier for the company to cost-effectively locateand preserve e-mail and attachments to which thepreservation duty applies.E-MAIL BACK-UPWith record-quality e-mail moved to records management,and non-record e-mail and attachments under control,there should not be a need for using back-up systemsfor archival e-mail storage purposes. Instead, the solepurpose for back-up of e-mail and attachments in theordinary course of business is disaster recovery.Find the person within the company’s IT function who isresponsible for disaster recovery restoration of e-mail, andask him or her how many days — not months, not years,but days — of network e-mail back-up to disk or tape aretruly needed to meet disaster recovery requirements.The answer will likely be anywhere from three days to oneHusch Blackwell LLP 4
For more information on records and information management, contact:Peter Sloan, PartnerInformation 50huschblackwell.comHusch Blackwell encourages you to reprint this material. Please include the statement,“Reprinted with permission from Husch Blackwell LLP, copyright 2010, www.huschblackwell.com” at the endof any reprints. Please also email info@huschblackwell.com to tell us of your reprint.This information is intended only to provide general information in summary form on legal and businesstopics. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legaladvice should be sought in particular matters.Husch Blackwell LLP 5
records retention schedule should identify categories or types of records, with suitable descriptions and examples, and with ordinary course of business retention periods that satisfy legal requirements and business needs. Only a subset of sent or received e-mail at the company will meet the policy definition and fall within the retention
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