Originating Author: David Floyer
Contributing Author: Michael McCreary
In the arms race of e-mail-based litigation, opposing attorneys have successfully attacked e-mail management rather than the e-mails themselves. An organization must be able to demonstrate that it follows clear, well-defined e-mail management policies and procedures. If not, it is open to accusations of systematic destruction or spoliation of e-mail-based evidence.
If proved, the penalties for these types of accusations are severe, ranging from sanctions to assuming adverse inference. The court can state that the evidence not produced by an organization is assumed adverse to its case. This can shift the burden of proof from plaintiff to defendant.
Action item: All archive policies and procedures for retention, backup, disaster recovery, security and access control (especially for internal and departed staff) may all come under scrutiny and attack. IT organizations must put into place strong procedures for regular internal and external audit of these procedures.
Action Item:
Footnotes: