SASKATOON, Canada – One in five organizations will settle a claim in a civil action to avoid the cost of recovering and searching through email, iTracks, a research company, found in a North American survey of 90 professionals who were directly involved with the legal discovery process from Nov. 7 – 23.

“Counsel is going to IT and saying this is unacceptable for us to find ourselves in the situation. It is embarrassing for our company and as I say, the lawsuits have been decided, not on the merits of the case,” stated Alan Armstrong, vice president of business development for Fortiva, an email archiving company that commissioned iTracks to conduct the research.

More than half of the respondents (58 percent) reported that they work in the legal department, while 19 and 22 percent of respondents work in IT and other departments, respectively.

Also, the professionals surveyed work in mid-sized organization ranging from 600 to 1,405 employees.

The timing of the study was deliberate, stated Armstrong. He pointed to the one-year anniversary of the amended U.S. federal rules of civil procedure that stipulates all electronic documents including email must be made available in the legal discovery process.

Armstrong reported that organizations in the U.S. face a number of legal requirements, including having to produce the emails within a 99-day period of the launching of the civil action and before the legal meet-and-confer-session of the counsel.

About a quarter of the respondents admitted their inability to retrieve and review email records within 99 days; while another 21.84 percent were unsure whether this was possible within their organization.

“That is really short period of time [for IT] to go through backup tapes, and search for evidence,” stated Armstrong.

Secondly, businesses must know the location of the emails, the length of time of storage and if the emails can be presented to the opposing counsel in a reasonable time frame.

Finally, the deletion of the emails is prohibited until the contentious issues have been settled legally.

“A number of options face the party being sued, stated Armstrong.”It is going to be around the cost of retrieving the information and the risks they believe exist in finding information that could create a situation of culpability. There is also the possibility that they will find something that proves their innocence.”

In other findings, 66 percent of respondents reported receiving each year at least one notice of a civil action by another party.

Another 37 percent reported conducting more than 21 searches through old email to gather information for legal reasons

Nearly half of respondents (40 percent) reported that their organization searches through email five or more times each year in response to a formal legal discovery request.

Just over half (53 percent) of respondents agreed that their legal team can effectively retrieve and review email within 99 days of litigation notice and before the meet-and-confer session.

Also, more than a third of respondents (36.7 per cent) are already enforcing a formal retention policy for email; while another 40 per cent are in the planning stage to enforce such a policy.

Armstrong told eChannelLine that he “did not find the results surprising.” But he remained optimistic.

The survey found that 51 percent of respondents have implemented or planning to implement an email archiving technology that allows easy search and review of email.

Another 57 percent have introduced or are planning to introduce technology to ensure that data can be reviewed in under 99 days.

This column was written by Paul Weinberg of eChannelLine

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