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Today's Headache Is
Tomorrow's Practice Area
by Wendy R. Leibowitz

North American businesses sent about 2.5 trillion e-mail messages in 2001. Recently, someone in an e-mail discussion group asked how to deal with e-mail archival issues.

Dealing with e-mail in an organized way is growing ever more complicated and important as many business documents, discussions and negotiations go electronic. About 93 percent of all information generated in 1999 was originally generated in electronic form, and might never be transferred to paper, according to a study by the University of California at Berkeley. Worse, e-mail and other electronic documents can be copied and stored in literally hundreds of places, such as e-mail attachments, automatic back-ups on hard drives, network drives, or magnetic tape, CDs and Zip drives, home laptops and Palm Pilots. When litigation hits, and you have to sort through the information, the cost in time alone can be a nightmare.

Considering the amount of embarrassing information that might be contained in these e-mails, not to mention confidential information regarding client matters, it's important that law firms think systematically about e-mail archival and deletions systems to protect the firm and the firm's clients.

A solution: Experts seem to agree that labeling or flagging e-mail is important. So if someone wants the e-mail to be archived, he or she must append a little icon to it (sorry I'm not an expert on e-mail systems, but it's not too hard to do with most systems). Another icon should indicate whether or not the e-mail is privileged and should not be disclosed in case of litigation. Otherwise, discard all e-mail during the routine course of business (after 90 days or whatever). If your attorneys balk at this ("Everything I write should be saved for eternity!") then have the default be that the e-mail is archived, unless the attorney marks it with an icon indicating that it should be discarded. I think electronic archives/CD/magnetic tapes will cause paper archives to become obsolete, except of course for the fat files that attorneys keep in their offices that contain 9 copies of everything.

It is difficult for people to remember the system, and perhaps there's a code on your correspondence caption that works the same way (prepared by/client number/archive or not/privileged or not). In which case you can merge your e-mail and correspondence codes. It's difficult to remind attorneys of the system, but if you scare the stuffing out of them with stories of e-mails mistakenly discarded or disclosed, it might help. No system is perfect, but having no system is a recipe for disaster. For more information on this topic, please see Ken Withers' excellent Web site, www.kenwithers.com.

The good news is that if you do a good job with your e-mail archival system, you can market it to clients as an aspect of your legal practice (depending on the type of firm you have, of course). There are growing high-tech practice areas in privacy and security law; Internet, voicemail and e-mail policies; and digital discovery expertise. Today's headache is tomorrow's practice area.


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