Email confusion could look bad in court

Despite discovery laws, many businesses are still unable to dig up email messages sent three years ago.

If an employee sued for constructive dismissal or sexual harassment, how easily could you assemble all relevant email traffic to defend against their claim? Or if a customer claimed you had guaranteed something you later failed to deliver, would you be able to prove otherwise?

As more business is done by email, rather than by letter, email management and archiving is becoming increasingly important. And yet, according to some new research, many companies are ill-prepared to dig out email trails that might go back over several years.

A survey of 125 British businesses, commissioned by email management company Mimecast Ltd, showed that a quarter of them were unable to retrieve an email message sent three years ago, and only 31 per cent felt confident they could produce an email audit trail that would be admissible in court as evidence.

For 29 percent of respondents, retrieving a copy of a three-year old email would take days or weeks. In addition, 42% of IT managers thought storage and management of emails should be the responsibility of individual users.

James Blake, chief product strategist at Mimecast, said the lack of audit preparation left companies exposed to a risk of being unable to defend themselves adequately in the event of civil or criminal litigation. "Being able to assemble a full and complete record of email evidence allows you to accurately assess the case either for prosecution or defence purposes and is vital to determining the best course of action," he said.

"You also need to store all the metadata relating to the messages – the disclaimer and attachment policies that could change the context of the message."

Email archiving has taken on a vital importance in the US, where several court cases (including a long-running class-action lawsuit against Oracle Corp.) have hinged on the ability or otherwise to produce relevant emails.

This has prompted companies like Google to launch a new email archiving service (via its Postini acquisition) and Symantec Corp. to acquire MessageLabs, which archives emails as part of its cloud-based service. Mimecast also offers a cloud-based management and archiving service.

Blake said that in UK courts, discovery rules still require parties on both sides to produce relevant evidence in a reasonable time, and that a failure to do so will be construed as guilt in a court or industrial tribunal.

Stewart Room, partner and technology specialist at legal firm Field Fisher Waterhouse LLP, said that being able to retrieve and disclose emails, though difficult for some companies, is only half the problem. "They also need to ensure that their emails are of sufficient probative value and evidential worth. This needs technologies which can produce comprehensive and accurate audit evidence of all keys events that have happened to the email after its initial sending or receipt," he said.

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