Legal Discovery

Email and Attachments

The importance of email in litigation is clear—it is often the first and most significant target of discovery efforts. The goal of discovery is to gather supporting evidence for a legal proceeding, and today emails often provide the most valuable insight as parties prepare for trial. Discovery costs typically represent at least 50% of the cost of litigation, and most of that relates to the collection and review of email.

Stung by expensive discovery costs and legally damaging emails, and supported by IT storage managers who want to keep data storage costs down, many companies have implemented 30- or 60-day email and electronic message deletion policies. Corporate counsel and IT managers think they save time, money and disk space if they get rid of messages before there is a reasonable anticipation of discovery, but while aggressive email deletion is a seemingly logical solution, it has one significant problem: it doesn’t work and won’t protect you from legal discovery requests.

Problems with Aggressive Email Deletion Policies

When an email is deleted from your mail server, it may still reside in a number of other places. First, there are always two copies of an email: one from the sender and one to the receiver. Deleting one copy does not assure deletion of the second copy. In addition, copies of emails are often retained on backup tapes. While many organizations recycle backup tapes, it is not uncommon to save a month’s worth of backup tapes in an offsite storage facility for disaster recovery purposes. When is comes to legal discovery requests, these tapes may be discoverable.

Users save copies of email in many different places—and often outside the email server. Emails and attachments are printed. Copies are saved on personal storage devices, such as iPods or USB thumb drives. Duplicates are saved in offline “PST” files on desktops, laptops or file servers, and they may still reside on handheld devices. Users often react to mailbox quota restrictions by sending copies of email home to personal accounts.

E-discovery expenses continue to be a significant part of overall of litigation costs, driven, in part, by companies’ needs to hire outside firms to assist in finding all of their data. According to Socha Consulting, it costs an average of $1,000 to $2,000 per gigabyte of data to identify, collect and process electronically stored information.