Databus Issue: 2009 1 03/31/2008
The Case for a Full E-Mail Archiving Solution Now
Jeff Patterson President
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RECENT CHANGES IN FEDERAL RULES OF CIVIL PROCEDURE reflect the legal system’s recognition of our movement into a Digital Age, where email has become the preferred method of business communications. And that goes for the business of education as well. School technology leaders failing to educate themselves on the basics of such issues as eDiscovery, data retention and comprehensive email archiving lay their districts vulnerable to costly legal sanctions and fines. In the event of any legal proceeding or lawsuit, without the dedicated foresight of technology and administrative leadership, your school district will remain exposed to grave financial risks. The good news is that actionable steps have emerged, adequate technology has been developed, and solutions exist with benefits that extend beyond vital legal protection. The following is an excerpt from a CoSN whitepaper of the same name. More information can be found at http://www.cosn.org/resources/e%20mail%20archiving%20exec%20summary%20final.pdf
eDiscovery and What It Means
eDiscovery should not be confused with state and federal Open Records laws. Open Records laws were designed to promote government openness and transparency. Data relating to the conduct of our government and public institutions is required to be released upon request.
eDiscovery, on the other hand, is more broad-based and covers any electronic data that could be considered as evidence in a legal proceeding. Whereas Open Records would exclude private information related to government employees, this same data may be subject to eDiscovery.
In December 2006, the Supreme Court made changes to the Federal Rules of Civil Procedure (FRCP). These are the legal rules that dictate what happens in federal civil cases and how discovery of information and materials relevant to civil cases is conducted.
Under the rule change, all electronic information is subject to legal discovery. Failure to produce such documents may lead to sanctions, including monetary fines and adverse court rulings in the underlying case.
Organizations may be protected by the courts if the documents requested are unavailable because they were deleted in good faith through the routine operation of an electronic information system (with established and documented deletion schedules).
Although left unstated in the rules, many commentators believe that in order to qualify for this protection, any such data retention policy must be reasonable. This rule change can and should be read as a mandate for all school districts to develop rules for and commence using an email archiving system that passes the test of reasonableness.
While the new rules only apply to federal cases, state courts often follow suit. Expect the same civil procedure rules to come to your local court system. Meanwhile, the type of federal civil suits which may bring these rules into play include: employment discrimination suits (ADA), health and safety suits (OSHA), and student services suits (IDEA).
Notably, the new rules apply broadly to all electronic data that could be considered evidence, but the rules don’t offer specific definitions. For the moment, most organizations are focused on email, with some starting to address the issue of instant messaging.
A Tidal Wave of Requests May Be Coming Your Way
As awareness of the new rules grows within the legal community and amongst the general public, expect an increase in email and other electronic-record requests.
Your district should instruct staff members not to expect privacy in any district-provided account. Nothing should be written that they would not want publicly shared or to be produced as evidence in court. In fact, even district business conducted via personal email accounts may be subject to eDiscovery, where it would still be the district’s burden to produce these messages.
How Districts Are Responding
Districts are opting for a number of different archiving approaches that range from complete passivity to active engagement. Responses fall into four broad categories:
(1) Waiting to see who gets caught and how bad it is;
(2) Waiting to see what their state Attorney General says;
(3) Relying upon system backups to provide archiving; or
(4) Implementing a full email archiving solution.
Some districts are attempting to circumvent the requirements by establishing a policy to keep email for as little as 90 days. While this may seem like a clever solution, it may not pass muster with the courts. In ruling upon the reasonableness of district archival policies, courts may look at statutes of limitations for filing civil suits (often two or three years), and may deem email archiving for any less time as unreasonable. To be sure, consult your legal counsel to determine the exact length of time that electronic communication and other data types should be archived.
‘Backups’ Do Not Equal ‘Archives’
Relying on your monthly backup as your primary archiving solution has a number of drawbacks. First, backups are not the same as archives. Backups provide a recent copy for recovery in the event of a disaster, saving only a snapshot of your existing system at a specific time. In such a snapshot system, not all data is archived. Any data received and deleted (intentionally or not) between a period of particular backups will be lost forever. Without the ability to ensure a complete archive, such evidence may not hold up under legal scrutiny.
Secondly, data from tape backups is alterable by district IT staff. Such lack of data integrity could bring into question the accuracy of archived evidence. Additionally, most organizations systematically recycle their tape backups, copying over them with new data. Thus, backups may provide those engaging in eDiscovery with an incomplete and possibly inaccurate view of communications from the period at issue.
Third, tape backups are notoriously difficult to search. If (or when) your district is served with an eDiscovery request, then your entire IT staff may be required to drop all other projects and spend months searching for and recovering the required data.
True archiving, on the other hand, can provide extensive search and retrieval functionality. Finding the required messages can then be done in minutes (vs. weeks).
Developing a True Email Archive
Considering the very real potential for disastrous financial and legal situations your school district should begin to consider implementing a comprehensive email archiving system. The two options for email archiving are to go with either an in-house or hosted solution.
In-house, Hardware-based Solutions
With an in-house solution, you buy the hardware and software to archive your email and store it in your data center. In-house solutions typically involve a software application running on a dedicated server, and may also include network-attached storage systems. The archiving application may function as a proxy, capturing all email traffic as it crosses
the network, or may utilize a journaling feature (such as with Microsoft Exchange).
Once the archive server captures the messages, email is indexed and meta-data is stored
in an internal database. The actual messages are typically stored on a hard-drive based
system within the dedicated server, or on external arrays.
The purchased solution may give the district greater customization flexibility; better utilization of available resources; and less access by outside contractors. In some cases, districts may require direct control over all of their data and the entire archiving process.
Disadvantages of a hardware solution may include upfront and ongoing support costs; the drain on your IT staff resources; a longer implementation time; the possibility of hardware failure; and the need for ongoing investments to keep up with storage needs.
Costs for an in-house, hardware-based solution vary widely. A 1,200-user district could spend as little as $9,500 to more than $30,000. Thus, even your smallest efforts in seeking out the right people, resources and systems can have large and worthwhile cost benefits.
Hosted Solutions
With a hosted solution, the email from your server is uploaded nightly (or even hourly) to a service provider. The service provider stores the email on their systems. The message data is indexed for fast searching and a web-based software application is provided for managing the data. Furthermore, the web-based access often includes value-added features such as data analysis, logging and user tracking.
Advantages of hosted solutions include: lower initial investment; management by IT professionals freeing up your own staff; secure, off-site storage; the ability to cancel the service at any time; and 24/7 access via a web browser. Additionally, hosted solutions remove any question of data tampering by your IT staff.
Disadvantages include: trusting a company with your data; concerns about bandwidth; access speeds; opening up the firewall; the impact upon the local mail servers; and ongoing costs.
Hosted archiving costs range from less than $10 to over $50 annually per account.
How does it work with the mail servers
Most archiving solutions for Microsoft Exchange utilize a message-journaling feature. All sent or received messages are copied to a local account on the server, a process similar to creating a blind carbon copy which preserves the email body attachments and message headers. The service provider pulls the data from the Exchange server and the data is marked for deletion from the local journal account.
Novell GroupWise archiving solutions generally use the store-before-delete feature. Users cannot permanently delete mail from the server until the messages are copied by the archive process. Care should be taken to allow adequate storage for user needs between scheduled archiving. Some workable system of monitoring the process should also be established to ensure that the archiving takes place as scheduled.
Archiving solutions for mail systems such as FirstClass and Mirapoint are essentially backup mail servers. These specialized backup servers prevent the deleting of data, and provide additional archiving specific features.
Other Considerations
As your district pursues any full email archiving solution, consider prevention of unwanted access to email. End users must be confident that their email is not being searched without proper cause.
Some states require that “all email users must screen and evaluate email messages according to ‘CONTENT.’” Based upon its subject matter, a message might be archived for seven, five or three years – or not at all. In practice, content-based archiving may be too time-consuming for staff members to perform, and today’s technology can’t accurately or reliably identify the content of every message. More common is to simply archive all email with the single exception of clearly-identified spam.
Benefits of Archiving
While archiving will place a significant burden on your staff and budget, the good news is that having a solid archiving solution in place offers many benefits.
District Defense. The data in your archives may in fact be your best evidence to defend the district in the case of a lawsuit. Do not underestimate the value of the archives to exonerate the district and prevent costly settlements.
Disaster Recovery. If email archives are kept in an off-site system, the archives themselves can play an important role in your Disaster Recovery Plan. Email accounts can be restored, database transactions can be rolled back, contracts and other working documents can be recovered, and digitized files can be accessed – even in the case of a natural disaster.
Knowledge Base. Email archives can serve as a knowledge base. Vast amounts of district-specific data will be stored in countless emails. With an adequate search system in place, users can easily cull their own archives for helpful information and administrators can efficiently comb former staff member accounts for crucial missing data.
Decreased Local Storage Needs. Some archiving solutions can benefit the local mail system by reducing the storage needs by utilizing a mail-stubbing feature and/or single-copy message stores. With mail stubbing old messages and attachments are deleted from your local mail server and pointers are left which reference the data in the email archives.
Recommendations
If your district has not already done so, then we highly recommend that you pull together an Information Management Team comprising your legal department, IT department and Records and Information Management (RIM).
Start taking action now to avoid being in hot water later. The full CoSN White Paper ($250 value) is exclusively available to CoSN Institutional and Corporate Members. Learn about the benefits and join CoSN at www.cosn.org/join/index.cfm
