An interesting discussion about e-mail archiving surfaced during the keynote session at the CGOC Summit Europe by Deborah D’Aubney, Head of Litigation at Rolls Royce, which I thought was unique and wanted to share with the broader community. Her session covered the importance of information lifecycle governance from the perspective of internal legal counsel. One of the key points Deborah made was related to the end of the lifecycle and the disposal of e-mail messages the organization was no longer required to keep. Specifically, she provided an example of having too much historical e-mail in the archive that, while trivial and not relevant to the matter, could be considered by opposing council and included in discovery.
The potential exists for e-mail in the archive to provide regulators/litigators insight into the corporate culture at a point in time or time frame. Simple e-mail messages discussing non-related subjects could indicate the organization had an institutionalized way of conducting business, which may have led to the alleged violation. It struck me that this is akin to the concept of establishing the defendant’s state of mind in perpetrating a crime. Essentially, the way things are discussed in e-mail can indicate the organizational state of mind.
This is not to say that organizations under scrutiny are necessarily bad in terms of adhering to regulatory and legal requirements. It’s that e-mail, as we all know, lacks real context relative to tone, potentially creating a scenario where words on the screen are construed differently than intended by the author at the time. For instance, the use of all capital letters being read as though the author is YELLING AT YOU WHEN THAT MIGHT NOT BE THE CASE AT ALL. Perhaps her/his keyboard was malfunctioning and they could only type in caps. I’m sure we’ve all had instances where we’ve taken comments in e-mail differently than they were intended, and have become angry at the author only to discover we had misinterpreted what they were saying.
Think about this in the context of personnel issues or customer support when e-mail between individuals outside a specific case become discoverable. It’s possible they provide an insight into the corporate culture leading to poor behavior when in fact it’s just the attitude of a couple employees. From the perspective of the proactive, data-driven organization the e-mail archive may be seen as a data source to be mined for insight into the values and norms of its employees shaping the culture. The new technologies available today being used to determine the sentiment and tone of its customers could be leveraged for internal benefit as well. However, that doesn’t eliminate the need to adhere to information lifecycle governance policies and dispose of e-mail from the archive when prescribed.
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