Mr. Bush - You Have Some Splainin' to Do

The White House has been under pressure for some time now because, contrary to the Presidential Records Act (PRA) of 1978, it has not been archiving its e-mail. Now, as the Bush Administration nears conclusion of its second term, the House Oversight and Government Reform Committee wants answers from the Administration and the National Archives and Records Administration (NARA). By February 1st, NARA has to provide the Committee with an explanation of how it will transition Bush Administration records to the National Archives by January 2009.

This is going to be very difficult since the Administration failed to replace its archiving system when it took over the White House and switched to a new e-mail system in 2002. In addition, it was also discovered recently that many White House staffers have been using Republican National Committee e-mail accounts to exchange messages - some say in direct violation of the PRA.

It is quite possible that thousands or millions of White House e-mail messages may be gone forever. The Federal Circuit Court ruled in Armstrong v. Executive Office of the President (August 1993) that electronic mail and word processing files must be retained as official government records. Committee chairman, Henry Waxman (D-Calif.), stated in a letter to U.S. Archivist Allen Weinstein last month: "According to information received by the committee, the White House has failed to implement a robust system for archiving e-mails and other electronic records, despite several efforts to do so."

But it doesn't stop there. On January 8th, a federal magistrate ordered the White House to explain whether these missing e-mails could be recovered from back-up tapes.

Oh George. Why didn't you just call me?

Avoiding Merger/Acquisition Headaches using Vendor-Neutral E-mail Archiving

We are often told by customers and partners that one of the attractions for IT departments of vendor-neutral e-mail storage is that they don't need to make a wholesale system replacement in the event they are involved in a merger or acquisition with a company using a different messaging system.

When messages in the archive repository are stored in a vendor-neutral format, they are available to users and administrators pretty much on-demand, regardless of what mail-server and client application is in use during either capture or retrieval. This means that it is possible for an organization with diverse messaging systems to operate with a single repository of all corporate e-mail without forcing users to move to one standard application.

Let's say an organization running Exchange exclusively acquires a company who only uses Notes:

• Beginning immediately after the acquisition, all of the Notes-user's mail can now be captured in the same repository that contains the mail for Exchange users - all of it in a vendor-neutral format.
• Administrators can execute enterprise-wide searches and retrieve any message(s) to their inbox (or send it to someone elses mailbox), regardless of the messaging system used when the message was originally captured.
• If one of the merging parties was to subsequently change it's e-mail system (e.g. adopt the system used by the parent company), all of the e-mail captured while using their old system, would now be available to them on their new system.

There is a reason why IT people hate merger/acquisition announcements - because in most cases, they mean BIG migration headaches. With vendor-neutral e-mail archiving, this migration can be avoided - or at least deferred to a more convenient time - without losing that all important single central searchable repository.

FRCP Preparedness - Focus on "Good Faith"

The December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) have caused another flood of fear and uncertainty flowing through the marketplace. But unlike the fear and uncertainty that accompanied Sarbanes-Oxley, which primarily impacted publicly-owned companies, FRCP affects any organization who might find itself in a civil law-suit. Therefore, this is a serious concern for every organization. But relax, it's not all that onerous.

The end product of the FRCP amendments, which deal specifically with Electronically Stored Information (ESI), is codification of the treatment of electronic evidence and additional clarity in a legal area previously shrowded in some mystery. For years, a party involved in civil litigation, who was unable to produce e-mail evidence in the discovery process, was able to hide behind a myriad of excuses and claims of lack of clear direction. This is now no longer possible. Now, much of the guess work (not all of it, mind you) has been removed.

It is the notion of Good Faith which is the essential element. Amendment Number 37 states that "...a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

What this means is that if you want to make excuses for not being able to produce e-mail evidence during discover because of cost or complexity (referred to as the "safe harbor"), you need to demonstrate "good faith operations". Falling back on old reliable excuses like " we didn't know what IT was doing" or "we automatically delete our e-mails after a month" will no longer cut it.

Path to FRCP Preparedness:

First and foremost, you need to understand that the term "Good Faith", as it is used in these new amendments, effectively declares you know our rules; operate accordingly. As a result, if you can demonstrate Good Faith in your treatment of electronic record keeping, you should be fine.

So how do you inject Good Faith into your organization's treatment of future e-mail evidence? Here are four key principles to follow:

1. Start Early - The onset of civil proceedings or a Litigation Hold is the worst possible time to start dealing wth this issue - do it now

2. Policy - Bring together legal, executives and IT managers to create a policy for the capture of, retention of, and access to e-mail records in your organization

3. Procedures - Define a set of procedures that align with the organization's Policy and, if needed, implement a system that automates these procedures

4. Communication - Provide a clear explanation to all employees of the organization's Policys and Procedures, and the responsibilities on each employee

For a copy of the white paper called "New Imperative for E-mail Evidence", send a request to communications@NorthSeasAMT.com