Tips for Creating an Effective Email Retention Policy

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Electronic mail (email) has evolved as a universal service that greatly supports a communication mechanism that is essentially critical both internally within your business community and externally to clients including prospective clients, and the public at large. Any policy about email retention does seek to establish a default retention period for email retained in your business active server. It also confirms roles and responsibilities for implementation including management of litigation holds.

The 2006 Amendments to the Federal Rules of Civil Procedure addressing the discovery of electronically stored information require businesses to establish email retention policies. The scope of such a policy should take into consideration:

· all email systems provided by your business;

· all users and account holders of your business email accounts; and

· all email and instant messages sent or received using your business email systems.

There are email archive solutions which can come in handy in helping you ensure that your emails are retained in line with the Amendments to the Federal Rules of Civil Procedure. First and foremost among measures you can have in place that can aid in keeping your email records in compliance is to have an Email Retention Policy.

A good Email Retention Policy should determine transitory email and instant messaging records that are created primarily for routine communication or information exchange. Messages are considered transitory messages (e.g. notices about meetings, internal requests for information, announcements, etc.) when they do not have lasting value and in effect these can be promptly deleted; or read and retained on the active server no longer than the default retention period.

Further, a well-intentioned Email Retention Policy should also determine the character of lasting value messages. When the contents of an email or instant message constitute one or more of the following characteristics, i.e.:

· operational value as required by your business;

· legal or evidential value as required to be kept by law;

· historical significance; and

· of vital value critical to ensure business continuity;

it should be classified as having lasting value. All such email and instant messages that have lasting value should be moved to dedicated storage on your business networked file systems (the equivalent of electronic filing cabinet) with pre-assigned retention periods.

You can have a default retention period set by your business email system that can be configured to automatically delete messages in accordance with existing legal guidelines. This auto-delete policy applies to messages within all folders (inbox folders, set file folders, draft file folders, etc.) stored in your active email server.

You should also have the need for a back-up files system in place. These back-ups are for system restoration and disaster recovery purposes, and not designed to facilitate retrieval of deleted messages.

On the contrary, however, when there is a litigation hold directive in place such directive overrides any Email Retention Policy, as well as any records retention schedules that may have otherwise called for transfer, disposal or destruction of relevant documents until the hold has been cleared.

You can therefore build an effective Email Retention Policy by:

· taking the first step to create an actual retention policy;

· creating strict guidelines to manage deletes;

· setting retention periods based on existing legal guidelines;

· being consistent with email retention rules applicable at every level of your business;

· making sure everyone is aware of your retention rules; and

· ensuring that your Email Retention Policy is followed.

When you have a well-developed email retention policy in place, and one that is properly implemented, it guarantees your business ability to deal with eDiscovery and Regulatory requests.

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