1 > MASTERING ediscovery: THE IT MANAGER S GUIDE TO PRESERVATION, PROTECTION & PRODUCTION >Authored by Nancy Flynn Executive Director, The epolicy Institute Author, The e-policy Handbook, Rules, Instant Messaging Rules, Blog Rules, Writing Effective , and Management
2 > Introduction Symantec Hosted Services MessageLabs, and The epolicy Institute, have created this business guide for IT Managers to provide Best-Practices Guidelines for Corporate Compliance with Electronic Discovery Rules. Through the implementation of a strategic compliance program, incorporating clearly written rules, formal employee education, and a proven-effective Hosted Service Archiving Solution, US and Canadian employers can quickly and cost-effectively preserve, protect, and produce legally compliant and other Electronically Stored Information (ESI) when compelled to do so by a court or regulatory body. MASTERING ediscovery: THE IT MANAGER S GUIDE TO PRESERVATION, PROTECTION & PRODUCTION is produced as a general best-practices guidebook with the understanding that neither the author, epolicy Institute Executive Director Nancy Flynn, nor the publisher, MessageLabs is engaged in rendering advice on legal, regulatory, or other issues. Before acting on any practice, policy, or procedure addressed in this white paper, you should consult with legal counsel or other professionals competent to review the relevant issue. > I. Legal Risks and Rules: and Other Electronically Stored Information (ESI) Create Discoverable Evidence Where does your organization stand on the matter of electronic evidence management? Do you know the difference between business-critical that must be retained and archived for legal and regulatory purposes vs. insignificant messages that may be deleted in the ordinary course of business? If you are a US company or a Canadian enterprise that deals with the States, are you familiar with the amended Federal Rules of Civil Procedure and any state discovery laws that your organization must comply with? If you are a Canadian firm or the Canadian branch of a US company, are you familiar with the rules of the provinces and territories in which you do business? In response to a discovery request, could you search, retrieve, and produce legally compliant 7-day-old, 7-month-old, or even 7-year-old messages and attachments? If the answer to any of these questions is no, then you had better get to work putting your organization s electronic record management house in order right now! > Your ability to formally define, effectively retain, successfully archive, and promptly produce and other ESI is one of the most important jobs you can undertake. > II. Discovery Obligations Are Inescapable: You Cannot Afford to Relax and React to the Protracted and Potentially Costly Demands of Litigation During legal discovery, the court orders each party to produce documents relevant to the case. The need to quickly locate and produce legally valid and other ESI ups the compliance ante for US employers. Fail to meet your discovery obligations, and you could be slapped with a courtimposed financial penalty or other sanction including instructions to the jury to assume that you have intentionally destroyed evidence. Following the lead of the US court system, Canadian courts increasingly are imposing extraordinary remedies to discipline parties who fail to meet their obligations, according to The Sedona Conference. 1 Real-life Disaster Story: > In the case of Z4 Technologies v. Microsoft, the judge ordered Microsoft to pay damages of $25 million, plus $2 million in attorneys fees, for litigation misconduct related to the company s failure to produce evidence and disclose the existence of a database in a timely manner during discovery. 2 2
3 Unmanaged and other ESI can trigger financial, productivity, and legal nightmares should your organization become embroiled in litigation. The cost and time required to produce subpoenaed , retain counsel, secure expert witnesses, mount a legal battle, prepare and sit for depositions and trial, cover jury awards and settlements, and launch a PR campaign to salvage your corporate reputation could put you out of business. Production of subpoenaed and ESI is mandatory, not an option. Consider these statistics: 90% of all business documents generated and acquired are electronic. 3 70% of all that digital information is never converted to hard copy. 4 24% of employers have had employee subpoenaed by courts or regulatory bodies. 5 Best practices call for a proactive approach to management. Follow the lead of the 51% of organizations that have implemented retention policies and deletion schedules. 6 Combine written content, usage, and retention policies with a Hosted Service Archiving Solution to ensure your organization s ability to preserve, protect, and produce legally valid evidence. > Proactive organizations establish strategic compliance management and programs, combining formal business record retention policies with employee education and proven-reliable archiving technology designed to deliver cost-effective, comprehensive compliance with the ever-increasing guidelines of the US federal and state court systems, Canadian provincial courts, and government and industry regulators. > III. Don t Take Chances with Regulatory Compliance: Regulators Take Seriously the Preservation, Protection, and Production of Electronic Evidence Government and industry regulators have turned an increasingly watchful eye to the content created and business records generated by , the Web, and other ESI. In fact, 36% of US companies reported increased regulatory inquiries or investigations in At the same time, 50% of financial services, insurance, engineering, construction, technology, and communications companies saw an upswing in regulatory audits, according to Fulbright & Jaworski research. 7 Increased use of electronic evidence by regulators and courts has motivated more employers to educate employees about electronic business records, American Management Association/ePolicy Institute research reveals. In 2009, 34% of employers provide employees with a formal definition of electronic business record, vs. 21% in As a result, 59% of users claim to know the difference between business-critical messages and insignificant . 8 Of the 38% of survey respondents who perform a job function that is overseen by government or industry regulators, 61% report adhering to regulatory requirements governing usage, content, and record retention. 9 When it comes to records management and, don t take chances with regulatory compliance. Consult with legal counsel to ensure that your organization is in compliance with regulators -related rules. Included among the US regulatory bodies and regulations that have established record retention rules are Sarbanes-Oxley (SOX), Gramm-Leach-Bliley Act (GLBA), SEC, FINRA, Health Insurance Portability and Accountability Act (HIPAA), and the Internal Revenue Service (IRS). Canadian companies that may be responsible for knowing and complying with SOX, SEC, HIPAA, and other US regulations include those that are listed on the New York Stock Exchange (NYSE), are members of the National Association of Securities Dealers (NASD), or have operations, customers, or patients in the United States. Canadian firms also must comply with Canadian regulators retention and archiving rules. That includes Bill 198, the Canadian version of SOX, and the Personal Information Protection and Electronic Documents Act (PIPEDA), the federal law governing the collection, use, and disclosure of personal information in the course of commercial transactions. 10 In addition, Canadian financial services institutions and professionals must comply with new records management rules imposed by the Canadian Securities Administrators (CSA). Among other requirements, National Instrument (NI ) established guidelines for the retention of and other ESI. 11 3
4 NI goes into effect on September 28, Those are just a few of many North American regulations and regulators that regularly request access to . If you are unsure which government or industry regulations govern your employees use of , now is the time to find out. Failure to comply could result in seven-figure fines, sinking stock valuations, and shattered reputations among other risks. > IV. Protect the Integrity of Your What Type of Makes Reliable Legal Evidence? To be considered legally valid, the court must deem to be authentic, trustworthy, and tamperproof. Unfortunately, can easily be changed and rendered legally invalid just by clicking edit and change. Even all-important business records can be forged when transmitted via . Unless properly managed and securely archived, opens your organization to claims ranging from I never received your message to That s not what the attachment said. 13 > Organizations that are eager to protect business records are advised to turn to archiving technology to ensure forensic compliance. By instantly encrypting and archiving a copy of every internal and external sent or received across your organization, a Hosted Service Archiving Solution guarantees that your is secure and tamperproof. Nothing in your archive can be deleted or altered. Everything in your archive is authentic and legally compliant. To qualify as a good business record and reliable legal evidence, must embody five qualities, as detailed in The e-policy Handbook, 2 nd Edition: #1. Authenticity: You can demonstrate who wrote the original message and who altered it. #2. Integrity: You can prove content and meaning have remained intact since creation. #3. Accuracy: Throughout its life, legally valid is accurate about the facts originally documented. #4. Completeness: Messages and metadata must be intact as part of complete records. #5. Repudiation: It s easy for a party to claim he did not receive a message or is not responsible for promises made via . A function of good evidence, protection against repudiation depends on the reliability of the process used to ensure authenticity, integrity, accuracy, and completeness. 14 A Hosted Service Archiving Solution assures Authenticity, Integrity, Accuracy, Completeness, and Repudiation the five essential qualities of compliant records and reliable legal evidence. > V. Conclusion: Every Organization Needs Rules and Tools Fully 29% of US organizations were involved in at least one litigation matter in 2007, with 32% battling lawsuits involving $20 million or more, reveals the Litigation Trends Survey from Fulbright and Jaworski. 15 In spite of s growing evidentiary role, not all organizations have addressed the need for strategic management and compliance programs. Only 34% of companies define electronic business record for employees, and 33% lack formal retention policies and deletion schedules, according to American Management Association/ePolicy Institute research. 16 Your ability to formally define, effectively retain, and successfully archive electronic business records is one of the most important jobs you can undertake. Your ability to search for, locate, and produce and attachments can have an enormous impact on your organization s assets, reputation, and future should you one day find yourself battling a workplace lawsuit, responding to a regulatory inquiry, or searching for proof of a contested business transaction. 17 4
5 > Unmanaged and ESI can trigger financial, productivity, and legal nightmares should your organization become embroiled in litigation. Best practices call for a proactive approach to management and compliance. Combine content, usage, and retention policies with a Hosted Service Archiving Solution to ensure your ability to preserve, protect, and produce legally valid evidence and other ESI. > VI. MessageLabs Hosted Service Archiving Solution MessageLabs provides a hosted service archiving solution specifically tailored to growing US and Canadian organizations. MessageLabs Hosted Service Archiving Solution is quick to set up, requires no dedicated IT personnel at the company site, offers secure, highly available retrieval of any incoming or outgoing , and provides a money-back remedy if service availability of 99.9% is not met. As a service, MessageLabs Hosted Service Archiving Solution is a fixed-cost expenditure with no hidden fees and complimentary 24/7/365 technical support. MessageLabs Hosted Service Archiving Solution Features Safe, secure archiving of and attachments. Search and retrieve and hundreds of types of attachments based on a broad range of criteria or search terms from within Outlook or with a Web-based utility. Bounded global search capability can be delegated to legal staff or managers. Single-instance storage and stubbing for and attachments, which helps reduce Exchange data stores by as much as 80%. Flexible and customizable supervision and review features that allow compliance staff to monitor, review, and comment on communications. Hosted infrastructure that allows new users and mailboxes to be added easily. Avoids archiving viruses and spam when used with MessageLabs Anti-Spam and Anti-Virus services. Increased Productivity With efficient archiving, your legal team can work more productively to conduct search and retrieval of and hundreds of types of attachments based on a broad range of criteria or search items without the time-consuming intervention of IT specialists or staff. In addition, attachment stubbing allows IT to meet the needs of end users by essentially removing quotas from their mailboxes. Employees can greatly reduce the time needed to manage quotas to stay within their mailbox limits. Not only does stubbing make retrieval from MessageLabs servers seamless for end users, but it also frees up valuable storage space on company servers. Reduced Costs MessageLabs Hosted Service Archiving Solution saves companies IT staff and employee time, storage, hardware, and software investments, while facilitating regulatory compliance measures. All of this cuts costs while improving employee productivity and customer satisfaction. Increased Protection The solution allows administrators to control retention policies by user, group, or message; provides optional supervision and review capabilities; and makes it easy to implement legal holds. With MessageLabs Hosted Service Archiving Solution, once these policies have been put in place, there is no guesswork involved in selecting messages and files for archiving. Employees and management are assured that their correspondence is safely stored and easily retrieved. Because MessageLabs archiving servers are redundant, corporate is highly available. For more information visit 5
6 About Symantec Hosted Services Symantec Hosted Services is the world s leading provider of hosted services for securing and managing , Web, and IM traffic (or communications). Over 21,000 organizations and over 9 million end users in 99 countries employ Symantec Hosted Services to protect against viruses, spam, phishing, inappropriate Internet use, spyware and other organization-damaging threats. About Symantec Symantec is a global leader in providing security, storage and systems management solutions to help consumers and organizations secure and manage their information-driven world. Our software and services protect against more risks at more points, more completely and efficiently, enabling confidence wherever information is used or stored. More information is available at About The epolicy Institute The epolicy Institute is dedicated to helping employers limit -related risks, including litigation, through effective policies and training programs. The author of 10 books including The e-policy Handbook, 2nd Edition, Executive Director Nancy Flynn is an in-demand speaker, corporate trainer, consultant, and expert witness. Since 2001, epolicy Institute has collaborated with American Management Association on an annual survey of workplace /internet policies, procedures, and best practices. A respected media source, Nancy Flynn has been interviewed by thousands of media outlets including Fortune, Time, Newsweek, Wall Street Journal, US News & World Report, USA Today, New York Times, NPR, CBS, CNBC, CNN, NBC, and ABC. For information about epolicy Institute products and services, contact or References 1. The Sedona Canada Principles: Addressing Electronic Discovery. See Principle 11, Comment 11.b. Canadian Experience to Date with Sanctions, (page 36). The Sedona Conference (January 2008), 2. Eric J. Sinrod, The New E-Discovery Burden, CNETNews.com (October 18, 2007). 3. Kim S. Nash, Retention: The High Cost of Digging Up Data, Baseline (August 2, 2006). See also Gareth T. Evans, A Closer Look at Calif. E-Discovery Law, The Recorder (July 17, 2009), 4. Gareth T. Evans, A Closer Look at Calif. E-Discovery Law, The Recorder (July 17, 2009), Electronic Business Communication Policies & Procedures Survey from American Management Association and The epolicy Institute. Contact epolicy Institute Executive Director Nancy Flynn for survey details, 6. Ibid. 7. Fourth Annual Litigation Trends Survey Findings, Fulbright & Jaworski L.L.P. (2007), Electronic Business Communication Policies & Procedures Survey from American Management Association and The epolicy Institute. Contact epolicy Institute Executive Director Nancy Flynn for survey details, 9. Ibid. 10. Wayne Simpson, Compliance: How Much Archiving Is Necessary to Comply with Regulations? itbusiness.ca (April 5, 2007), 11. Kieron Dowling, Tough Archiving Laws Coming Soon to Canada and How to Prepare, itbusiness.ca (July 8, 2008), 12. NI Registration Requirements and Exemptions, 13. Excerpted from Nancy Flynn, The e-policy Handbook, Second Edition, New York, AMACOM, Ibid. 15. Fourth Annual Litigation Trends Survey Findings, Fulbright and Jaworski L.L.P. (2007), Electronic Business Communication Policies & Procedures Survey from American Management Association and The epolicy Institute. Contact epolicy Institute Executive Director Nancy Flynn for survey details, 17. Excerpted from Nancy Flynn, The e-policy Handbook, Second Edition, New York, AMACOM, Copyright 2009 Symantec Corporation. All Rights Reserved. MessageLabs and the MessageLabs logo are registered trademarks and Be certain is a trademark of MessageLabs Ltd. and its affiliates in the United States and/or other countries. Other products, brands, registered trademarks and trademarks are property of their respective owners/companies 6
7 >www.messagelabs.com >US and Canada: >AMERICAS >UNITED STATES 512 Seventh Avenue 6th Floor New York, NY USA T: >CANADA 170 University Avenue Toronto, ON M5H 3B3 Canada T: >Asia Pacific >HONG KONG Room 3006, Central Plaza 18 Harbour Road Tower II Wanchai, Hong Kong T: >SINGAPORE 6 Temasek Boulevard #11-01 Suntec Tower 4 Singapore T: >JAPAN Akasaka Intercity Akasaka Minato-ku, Tokyo Japan T: >Europe >UNITED KINGDOM 1270 Lansdowne Court Gloucester Business Park Gloucester, GL3 4AB United Kingdom T: +44 (0) >LONDON 40 Whitfield St London WIT 2RH United Kingdom T: +44 (0) >NETHERLANDS Teleport Towers Kingsfordweg GR Amsterdam Netherlands T: +31 (0) >BELGIUM / LUXEMBOURG Culliganlaan 1B B-1831 Diegem Belgium T: +32 (0) >GERMANY, AUSTRIA, SWITZERLAND Feringastraße Unterföhring Munich Germany T: +49 (0) >AUSTRALIA Level Kent Street, Sydney NSW 2000 Australia T:
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