Email - The Holster of the Smoking Gun

When it comes to understanding the policies by which a business truly operates, it is not necessarily from those documented in formally prepared Word documents or PDFs posted on the company Intranet. In fact, it is the informal messages between staff in emails that override these formal guidelines that dictate and document behaviour and policy. Emails provide an "audit" trail of the thinking, morals and practices that employees follow on a day by day basis. They may differ, sometimes widely, from the formal policies, and they may also change over the life of an organization. They could even differ between departments in larger companies. The more senior the person sending the email, the more weight the informal policy will have, irrespective of the content of the formal policy. Should the "policy" be the basis for defending a legal action, this inconsistency between formal and informal policies can be brought into question. Understandably, access to these informal policies is vital in for the legal team to prepare a suitable defense.

A train of enquiry could develop from emails that were recorded last week, last month or last year. A legal team is looking for the smoking gun, as early as possible in the litigation process, and whilst all manner of data may contain it, email is the one area that is most common. With much of the online email data being archived or deleted after a short to moderate period of time, having snapshots of the email system at various older points in time is vital.

Such email system snapshots are recorded in the backups organizations routinely take and retain for months and years - much longer than the online expiry of mail data.

When the legal team is preparing its defense, the lawyers don't really care for right or wrong. They need to know the facts - and as soon as possible.

Picture this. A defendant, a senior manager in a large government department, tells his lawyer, "There's no way we could have discriminated against that employee. Our official policies state that we will treat each employee with respect and fair and equal dealing. And we always follow these guidelines."

The lawyer questions, "Are you sure that you or no one in your management team could have inadvertently said something that would make him want to sue you for wrongful dismissal?" "Not at all," the manager answers. "Check our email systems if you want. There's no record of any such behaviour either."

Armed with this, the lawyer prepares a defense for the case on the basis that the management of the organization operated fairly and without bias against the employee. The IT department as directed by the legal team may even index and scan through the entire contents of the online email system and, as expected, find no evidence to link any inappropriate behaviour between the management and the employee on this matter.

Imagine when they get to court and the employee's lawyer tables a document they found only recently which is a hardcopy of an email documenting the discrimination that occurred. The defense attorney is floored, and glares angrily at his client, red-faced and sheepish. The unavailable evidence is enough to lose the case for them.

Under such circumstances, the only reason why the department no longer had an online record of it was because it was purged from the email system six months ago, and the basis of this event was 12 months old.

The investigative team should have searched the backups of last year's emails and found the email in question. With this, the legal team could have formulated a case strategy that manoeuvred around this email. They would have known of its existence, and side-stepped the issue when the email was tabled.

How they do this of course is up to the mastery of the legal team. However, the point is clear. With full knowledge of the facts prior to the case going to court, the legal defence team would be armed with information about the "smoking gun" that has the potential to lose the case for the defendant. Historical emails are key to this.

Any eDiscovery action will require a strategy to search historical data, mostly in emails, to elicit all pertinent facts. Every organization faced with litigation should have their IT department aligned with a service provider who can quickly provide access to the information in the historical data archives to appropriately prepare for a case.

Teena Townsend is the Marketing Manager for SpectrumData, an organization specializing in the storage, recovery, migration and management of legacy, archive and backup data.