Understanding the Difference Between an Email Archive and a Backup Can Save You Money

An appreciation of the difference can save your organization a lot of money. How? Legal discovery costs and court fines. Simply put, the difference between a back-up and an archive, is that a back-up is not searchable where an archive is.

When you need to present old e-mail messages in court, knowing that there is a copy somewhere on a tape is of no value at all. If you can't produce the messages, having them is valueless. The inability to search for messages means that they cannot be found, and if they cannot be found, for all intents and purposes, they do not exist.

But, maybe most important of all, if you are involved in a lawsuit, don't expect the judge to be lenient with you when you say that you have the messages requested, but it will take you too long, or cost too much, to produce them. Where this approach sometimes worked in the past, the new FRCP rules governing electronically-stored information, will undoubtedly block the "Oops, I'm sorry" defense. Now, the judge will probably 1. impose a hefty fine on you, or 2.tell you to get them anyway...or maybe both! In either case, you will pay through the nose, and then once you are finished paying, you'll undoubtedly purchase an archiving system anyway.

In time, the courts will ultimately decide the extent of punishments to be levied against FRCP violators. The proverbial jury is still out with respect to the scope of such fines etc, but the intent of FRCP is clear: Information contained in e-mail messages has potential evidentiary value and therefore cannot be indiscriminately or procedurally deleted. Once again, messages on backup tapes cannot be searched for, and therefore do not exist.

If you're considering taking the risk and hoping you won't need those e-mails, consider these two probabilities:

1. There is a 89% likelihood of facing a civil suit in any given year (Source: international lawfirm, Fulbright and Jaworski)

2. More than 50% of lawsuits include e-mail evidence (Source: MIT)

This means that, at least mathematically, in any given year there is a 45% likelihood (89% x 51%) that your organization will be required to present e-mail evidence. So you had better know the difference between a backup and an archive!

Like any investment, you can spend the money and be left wondering if you really should have, or you can avoid the expense and take your chances. But, an investment of a few thousand dollars can give you an e-mail archiving system that could end up saving you hundreds of thousands or more. But then again, I might be biased.

For product information go to: www.NorthSeas.com

Sarah Palin and Her Maverick Emails

E-mails between Alaska Governor and Republican VP-candidate Sarah Palin and her administration are being withheld from the public. This pertains specifically to their use of a Blackberry for sending/receiving messages that do not leave a trace.

Press secretary, Bill McAllister downplayed the matter with "I don't hear any public clamor for access to internal communications of the governor's office," McAllister said. "I know there are some people out there blogging and talking who would like to embarrass the governor by taking an internal communication and spinning it in some fashion."

Ok, that makes sense, particularly in an election year. However, there might be a bigger issue at play here - Alaska law. The Alaska Public Record Act (APRA) is a guarantee that the public have access to public records at all levels of government in the state.

APRA even spells out what constitutes a public record. "Public records" are defined as books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency. The Alaska Public Records Act states that "Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours."

Now the Governor's office is claiming that she's done nothing wrong, presumably prepared to cite that in 1986, the Alaska Supreme Court ruled that there is a limited "executive" or "deliberative process" privilege that protects communications between the governor and his or her aides about policy matters such as internal communications about advice, opinions, and recommendations.

But does the 1986 ruling give the Governor the right to utilize a communication system that cannot be captured for the record? What assurance do the people of Alaska have that this system was never used for correspondence that should have been on the public record?

Does the term "deliberate process" suggest that its legal for the governor to set up a separate e-mail system so that whatever is discussed cannot ever be disclosed? Doesn't the term "limited" in the 1986 ruling, prohibit this option? There would be no issue here if the governor's office had captured all of their correspondence and then withheld those messages which it feels are covered under executive privilege.

But she didn't do this. Where she might be at fault here, is the very fact that she's using a separate e-mail system in the first place. When a personal email system is used by a state official, regardless of the nature of content of any given message, it willfully bypasses whatever means had been adopted by the state for preservation of public records (e.g. email archiving) . Whether deliberate or not, this gives the governor and her aides, the ability to delete possible smoking guns since messages transported using this alternate system are usually deleted on a regular basis (e.g. every 30 days), if retained at all. Therefore, nothing that is exchanged in this way, can ever appear on the public record.

Is the Governor in breach of APRA, a law that requires that the public have access to public records? Can she defend the use of a non-official e-mail system (e.g. Yahoo, Blackberry) by claiming "limited executive" or "deliberate process" privilege?

Check out a similar story about the Bush Administration: http://spenceatnorthseas.blogspot.com/2008/01/mr-bush-you-have-some-splainin-to-do.html