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Guide To Legal Email Compliance

9 Oct, 2009 By: Laurel B. Sanders imageSource

Guide To Legal Email Compliance

There’s no doubt that we are an information-based society. When we want to
know something, we expect accurate answers immediately.  Email fulfills this
need in business, settling time-sensitive questions, accelerating customer
service, and communicating critical information. Yet the luxury of convenience
carries a price…

Last year The Radicati Group, a technology market research firm, estimated 2
million emails are sent every second.  This year they projected that email
traffic will double between 2009 and 2013. More communication, more headaches,
more information to gather, classify, store, manage & purge. Without effective
automation, it’s cost prohibitive—and nearly impossible.

FRCP:  Why You Should Care

There’s no better incentive for doing what’s expected than federal regulations
bearing penalties.  The Federal Rules of Civil Procedure (FRCP), requiring all
organizations to be prepared for electronic discovery (eDiscovery) of data in
the event of litigation, are causing many businesses to reexamine email
management practices. FRCP stipulates that all organizations—whether large or
small, corporate or non-profit—must

•  Know where their data  is

•  Understand how to meet court demands for information

•  Be able to determine which data is not subject to search.

Failure to produce requested data within mandated timelines can result in stiff
penalties and devastating lawsuits. 

The Good News 

Fortunately, storing and indexing business-related emails, attachments, and
associated documents in a central, searchable data repository not only aids in
compliance; it also helps your business to be more efficient.  With electronic
document management (EDM) software, time-consuming indexing, storage, retention,
purging, and reporting can be automated.  This saves time and money, and
dramatically simplifies data management.

The Power of Email

Email comprises roughly 80% of communications in most businesses.  Messages
clarify attachments, shed light on documents and contracts, and sometimes relay
confidential information.  Yet often, their content is locked away in personal
email folders, inaccessible to those who need it for future business planning or
legal protection.  Why?  Non-existent email policies, poor archival, and
inefficient email management.  Finding messages and attachments when they’re
needed is time consuming and expensive; some researchers indicate 50 percent of
litigation costs result from gathering and analyzing emails.

Left unmanaged, email is like a volcano spewing ash. 
There’s no control over where the content goes, and cleaning up afterward can be
painstakingly difficult.  You’ve probably experienced challenges such as
searching in vain through folders or files for requested information or
discovering that relevant emails were deleted earlier, putting your company at
risk for a lawsuit for not meeting data preservation orders, or perhaps files
subpoenaed for eDiscovery cases aren’t found quickly, resulting in costly search
or fines, or that irrelevant emails are retained, slowing manual and electronic
searches for pertinent information. The list goes on.

Beyond Archival

The goal of managing email is to efficiently store and index mission-critical
transactional data to enable informed decision making, easier compliance, and
eDiscovery.  EDM offers numerous benefits beyond archiving:

•   Managing incoming messages – Whitelists (indicating senders whose
emails you want to receive) and blacklists (domains, senders, and other criteria
for undesirable email) help you filter unwanted emails.

•   Classification and storage – Automating email management within an
integrated EDM system expands your indexing choices, letting you classify emails
using email header information of your choice.  Thorough indexing guarantees
easy & fast retrieval. You can associate emails with their attachments as well
as other relevant documents stored in the EDM system.

•   Security and retrieval – EDM lets you determine which content should
be viewed by which people according to their department, job role, content, and
more.  The same rules that govern document security apply to email.  This helps
you to manage highly sensitive information, while making it available quickly in
the event of litigation or audits.

•   Management – EDM becomes the foundation for automating business
processes, using indexing information (header, subject, etc.) to initiate
specific actions.  Email header content can launch customer inquiries, push
application forms forward for approval, etc.

•   Migrating or purging messages –
Following governance rules you
establish, EDM retains electronic messages you need while eliminating irrelevant
communications.  Indexing information and message content ensures: messages
aren’t prematurely deleted; emails required for litigation holds are properly
archived; messages that are no longer relevant or past retention deadlines are

Managing Your Emails

Risks can’t be entirely eliminated, but they can be
managed. When you invest in EDM, you’re planting seeds to ensure complete,
accurate, up-to-the-minute information for better decision making; efficient
data management as email communications continue to increase; a guarantee that
emails will go consistently where you need them—all of the time.

Protect your business by:

•  Establishing clear procedures for retention and data preservation so you can
comply in the event of litigation.  Communicate policies frequently in writing.

•  Auto-indexing every email and associated attachment so it will be easy to
find when it’s needed.

•  Storing emails and attachments in a centralized, browser-accessible
repository.  Centralized search pulls pertinent information together quickly.

•   Automating retention rules based on headers and content to ensure
appropriate archival and timely destruction. 

Dealers, manufacturers, customers, all businesses need to be prepared.  In the
event of legal subpoena and litigation, EDM makes sure you have everything you

Regulations or Best Practices?

Regulations are put into place to help implement the
underlying statute from which their authority ensues. However, some are designed
instead to follow Best Practices standards and procedures as detailed in a 2003
private initiative relating to the 2000 ESIGN statute referred to as “Standards
& Procedures for Electronic Records & Signatures.”  

ESIGN and UETA:  ESIGN, the federal Electronic Signatures in Global and National
Commerce Act and UETA, the state-enacted Uniform Electronic Transactions Act
were drafted with the intent of ensuring that electronic transactions would be
afforded the same validity and legality as paper transactions – to accommodate
and promote the efficiencies of digital information. 

The foundation upon which these rules are based are:

•   A record or signature may not be denied legal effect or enforceability
solely because it is in electronic form

•   A contract may not be denied legal effect or enforceability solely because
an electronic record was used in its formation

•   If a law requires a record to be in writing, an electronic record satisfies
the law

•   If a law requires a signature, an electronic signature 
will  satisfy

An “electronic signature” is an electronic sound, symbol, or process attached to
or logically associated with a record and executed or adopted by a person with
the intent to sign the record.

Digital Information – Burden of Proof:  Permitting electronic
records to substitute for writings serves little purpose if the records are not 
legally admissible as evidence in the event of a dispute.  A record or signature
may not be excluded from evidence solely because it is in electronic form.  An
electronic record also qualifies as an original, even if that record is not the
original form of the document, and satisfies statutory audit and record
retention requirements.  Beyond that, the ordinary rules of evidence will

Federal Rules of Civil Procedure:   Amended in 2006 with respect to
e-discovery procedures, it  focused attention on the need for enterprises to
take a proactive approach in managing their digital information, primarily
e-mail, in order to defend against a possible lawsuit. 

Electronic Transactions – What’s Needed for Protection AND

When reviewing software, look for a core service that provides the sender with
legal proof of delivery, content and official time stamp, including all
attachments, where the recipient does not have to take compliant action for
sender to be protected.  Additional service features to consider include
electronic signature, electronic contracting and end-to-end e-mail encryption. 

For instance, the RPost® service delivers a Registered E-mail® message, with
attachments, and automatically returns verifiable delivery evidence in the form
of a Registered Receipt™ e-mail containing a digital snapshot of the content
(message body and all attachments) and the official time the e-mail was sent.
Visit RPost® at www.rpost.com.

Laurel Sanders is the director of public relations and
communications for Optical Image Technology.  For information about the
company’s award-winning suite of DocFinity software, visit
www.docfinity.com or
contact info@docfinity.com.

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