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 eliminated.

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 need.

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 apply.

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 email, in order to defend against a possible lawsuit.

Electronic Transactions – What’s Needed for Protection AND Accountability:

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 email encryption.

For instance, the RPost^® service delivers a Registered Email^® message, with attachments, and automatically returns verifiable delivery evidence in the form of a Registered Receipt^™ email containing a digital snapshot of the content (message body and all attachments) and the official time the email was sent.