November 19, 2010

Follow Up Conversation with Don Skupsky. The offer I couldn't refuse

by Cary J. Calderone, Esquire

After my last blog article, I wanted to follow up and share some of the items that I discussed with Donald Skupsky, JD, CRM, FAI, MIT, after his presentation.   It seemed like we had very different ideas on email management best-practices for organizations.  Just to be fair, open and up front, I shared my concerns with him and in typical fashion, once we had a more in depth discussion on the issues, it turns out we agreed on quite a bit.  For example, we agreed that most employees keep far too much email. 

The numbers he presented estimated that only 5% of email actually includes content substantial enough to be considered a Record.  I would add a few more percentage points for material related to Records. He also explained that there are some companies, a few, that do have a policy to tag and keep business record emails and have the rest deleted in 30-45 days, and they have been successful in defending their practices. They use a folder for Work-In-Progress but the main inbox gives the user a very short period of time to decide if an email is a Record, and then to move it to another location or repository for safekeeping, otherwise, it gets deleted.  There are a few companies that purport to use this policy, but I sure would like to see if they actually adhere to the policy in sufficient fashion to have it withstand legal scrutiny.

Mr. Skupsky also believes too many companies use a fall-back policy where they end up keeping pretty much everything, and this is a terrible practice.  I have witnessed this policy in action quite a few times. One company kept so much electronic information that when they needed to search its email archive, they were limited to 4 concurrent searches and it would take upwards of 12 days to get the first search results back. Not a very good system for Early Case Assessment or a Litigation Response team, to be sure.  So we both agree that when it comes to email, keeping everything, is a bad policy.

Ultimately Mr. Skupsky described himself as a bit of a devil's advocate.  By challenging a company with a 45 day email deletion policy, he believed it was more likely that ultimately, even if they would not agree to 45 days, they would agree to a relatively short deletion period of 6 months or a year.  He explained that if they were not challenged early, so they had to act to manage their email, users always defaulted to retention periods that are too conservative and too long or, they never take any action at all.  The end result would once again be email inboxes that are not managed.  His position is that if they are not going to manage it, then they are better off not keeping it.  So, while I cannot argue with Mr. Skupsky's goals, I will still persuade my readers to consider employing a different tact.  I prefer to suggest simple and straight-forward policies and guidelines that will help them eliminate upwards of 50% of their non-record and non-business related email quickly.  Too many users have stated that they would love to delete many emails but they were not sure if they could or should, so they kept them all.  Mr. Skupsky and I are both shooting for keeping less mismanaged information, but my method is likely to err on the side of keeping more business emails rather than fewer.  The lawyer in me wants you to keep information that may help us understand your case.  Is it a perfect system?  No.  But making users affirmatively move Records, to safeguard them from deletion seems riskier.  After the first 50% is removed from the inbox, we can then work on managing the next 30-45%, which will likely be more challenging, but can be better managed with some department and function-specific policies and procedures, and perhaps some of the great new search and management tools that are available.  Either system correctly employed and monitored will reduce a great deal of email clutter.  And, this, in and of itself, will provide a huge cost-savings for the over-stressed IT department.  It will also enhance any Litigation Response program that needs to address eDiscovery.  I just want to be more comfortable that the Litigation Response team will find relevant information on their own servers, before they see it produced by an adverse party in litigation!

My approach comes from the basic belief that the use of technology is critical to an organization's success and they must keep up with new productivity features to stay competitive.  So, I want to allow for expanded usage, and less effort to manage that usage.  Mr. Skupsky believes records retention practice actually can help support the use of technology too.  He just abhors mismanaged data growth.  So while on the surface we agree, I lean toward recommending any Retention and Records and Information Management policy will be flexible enough to be updated, and amended to reflect the ever-changing needs of the users.  And, whenever possible, allowing the users more use of the data and any new technology enhancements.  The new reality is many companies are now contracting and performing other substantial business functions via email, electronic exchanges, and even Social Networking sites.  So if the RIM program is too limiting on the use and retention of electronic data, it runs the risk it will become impossible for employees to follow it thereby making it irrelevant. The days of following simple static rules that worked fine for slow moving paper are gone.  It is time to keep up with email, Facebook, Twitter, and whatever may come next.

Special thanks to Donald Skupsky, for taking the time to consider and respond to my comments.  

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