Dan Lynch's Blog

In the best of all worlds large corporations subject to litigation and e-discovery would be fully funded to obtain and implement one of the enterprise class tools to help archive, search and produce email content to meet legal discovery requests.  Implementing e-mail archiving of every message sent, received or currently stored, involves non-trivial costs and infrastructure changes, which In the real world of budgets, profit, opportunity costs and many other factors, may take some time to be funded, or may not be funded at all.   This blog entry is to discuss some of the native capabilities available to the Domino admin, that can meet the legal requirements absent archiving services, and some of the advantages domino offers in this realm vs exchange or other mail systems that may not be readily apparent to those who have not yet navigated this minefield.  These impressions have been gained by directly supporting litigation and e-discovery efforts for a large corporation running 2 different mail systems during a number of large cases following the implementation of new laws governing discovery. 

The newer Federal Rules for Civil Procedure enacted in December 2006 include new responsibilities and burdens to provide access to electronic documents including email as a part of litigation.  Failure to produce this information can result in significant civil penalties and even jail time for non compliance with the new laws and specific directives of judges and courts.  Email is typically the first source of information that plaintiffs and defendants are asked to provide discovery around, and there are different strategies, absent an archiving solution, to pursue these using native domino capabilities you already own today.  In certain sized actions, (small to medium claims) some plaintiffs and lawyers have a vested interest in imposing potentially labor-intensive e-discovery requests on companies, as a strategy to try to compel settlements due to the time, expense and effort required to produce e-discovery data.  In larger cases, e-discovery will be the norm in most cases.

In the realm of electronic documents including email, the need to preserve is the first challenge for discovery, sometimes referred to as placing a "legal hold" on relevant information.  Operationally, that means if you currently delete email on a scheduled basis as part of a document or email retention policy, you need to exempt these individuals from that activity as soon as you are notified of the action, and document when and how you did that.  Some entities subject to higher regulatory obligations (ie financial services) may actually remove end-user capability to delete their own mail, some will simply notify end users identified as part of the action to preserve any potentially relevant documents.  If you have no policy and delete mail on a scheduled basis anyways, your business partners in HR or Legal will have some legal challenges to overcome explaining why you do that absent a policy that requires it, which is a huge issue outside the scope of this discussion.

The next step is to segment data for preservation and provide access to all sources of potential email data in live mail files, domino archives, etc, in an immutable form to the degree possible, as of the time of the notice of action.  That set of actions is relatively easy in a domino world.  To get an immutable copy of the mail data simply create a new, static, server-based copy (not  a replica) of the mailboxes in question, and by removing user's ACL rights, those mailboxes are therefore preserved under the care, custody and control of IT groups, on a server.  By doing that the burden of preservation is essentially met for that point in time capture of that mailbox based on existing controls, time-tested and established industry processes (acl rights in an enterprise-class email system etc) such that any legal-technical challenge of the immutability is essentially moot.  Only your domino admins at that point are custodians of that data.  We also provide legal access to the dynamic, server-based archives and live mailboxes for the users to meet the burden of discovery for any past, current or ongoing issues that may be alleged in the suit.  You can also create a database as a repository, ie another Notes DB based on the mail template, to which legal can copy only the relevant documents for further review by internal or external lawyers involved in the case.

Exchange, and other mail systems that are essentially databases of the single-instance-storage design structure where data is not physically segmented by user, offer no such native, server-based, in-situ capability to create static copies of server-based mail files for a particular user, that can be logically or physically segmented and accessed on an email server.  In that world, in order to create such a static copy, you'd need to create a PST file that is then not part of the Exchange security environment (on a local pc or file server--not within the exchange mail server), which can be secured on a pc or file server somewhere, but cannot be shared between legal users doing searches, and can only be connected to one Outlook client at a time.  That creates some potential issues with the care, custody and control of PST files; that scenario is substantially different vs Domino, and it involves potentially more data custodians (ie pc support, file server people that can have access to that data for good or ill intentions) that make that method open to broader challenges and potential concerns from a data integrity and immutability perspective.  Local, asynchronous, Outlook PST data on local hard drives that users may have as well are another potential source of data, custody issues, and work required to ferret out that data in the Exchange/Outlook scenario.  (The same could be said about local domino replicas, but typically most Notes users have synchronous replication enabled vs async.)

In terms of the mechanics of providing access for legal to conduct searches of the data, domino makes all that work much easier.  Simply send a message to legal with links to the live mail files, static copies and any server-based archives for the users in question, and that, along with appropriate ACL rights for the paralegals, will allow these Notes users in legal to access and perform searches without requiring client touches to configure access to mailboxes, and without needing PC support to configure clients.  In Exchange and Outlook, to provide access to the live mail files and any static PST files that may have been generated, you will need to configure the outlook client to access each and every mailbox, and will need to know passwords for all of them.  By doing that, PC support would typically get involved, and would need to be provided the passwords, and therefore the number of custodians, and potential people that could be deposed, would grow in number along with the extra work required to provide access.

One trap all IT shops should avoid with any approach to e-discovery is getting into the "searching for content" business; we've found that the most effective, safe, and germane IT role is to be custodians of data, provide access to it, and to show legal teams how to search and extract potentially relevant data to a repository.  That is a strategy that will bear fruit when deposition time comes around: IT can testify as to the things they do well (ie providing systems to hold data in a secure, immutable and searchable manner), and legal can testify as to the content and nature of the data they found and extracted, ie the things they do well.  By doing that, if fines or jail time are involved, (don't laugh they are possible and have happened) by clearly defining the IT role up front, and by being very responsive to e-discovery requests from legal, we will have met our obligations in a timely and effective manner, and therefore IT does not put itself in the position of representing what may-- or may not-- have been found while searching for items related to litigation.  

At the end of the day, in doing a number of these, we have found that there are some practical advantages to doing e-discovery for email with Domino that have helped us deal with this workload absent an archiving solution, that seem to be easier and better with the IBM product.