Archiving 101: Email and Open Records

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Information about Archiving 101: Email and Open Records

Published on February 20, 2014

Author: gaggle_k12



SWMSS (Southwest Montana School Services) Technology Summit 2013 (Tom Petit)

In this session we will show you Gaggle's cloud based email archiving solution which is tailored to meet the needs of K-12, Higher Ed and Government institutions. In addition, we will share information about our unlimited storage, multiple custom retention periods, full boolean search capabilities and extensive administrative tools’ including litigation holds, search and access logs.

Learn how Gaggle archives multiple systems including:, Google Apps, Office 365 and other email platforms. For more information, visit

Presented By: Tom Petit Gaggle

Archiving Serves Many Purposes  Legal Discovery  Federal Rules of Civil Procedure (FRCP)  Sunshine Laws/ Freedom of Information (FOI)  Regulatory Compliance  Storage Management/Backup  Redundancy/Disaster Recovery  Green Initiatives  Archiving is not student records retention

e-discovery and Regulatory Compliance Yes, you have to do it!

Legal (e-discovery) Discovery  Amendments to Federal Rules of Civil Procedure (FRCP)require organizations to manage their email in such a way that it can be produced in a timely manner when necessary in legal proceedings (e-discovery).  e-discovery refers to finding and producing documents stored in electronic form in response to litigation or regulatory requirements. Civil litigants, regulators and criminal prosecutors now commonly ask for copies of emails and make broad requests for all electronic records.  E-discovery rules apply to administrative proceedings.

Legal (e-discovery) Discovery cont.  Courts also continue to remind counsel of their obligation not only to ensure that a legal hold notice is issued in a timely manner, but also to monitor its implementation.  Cooperation remains a significant topic, both in the context of search methodology and form-of-production disputes. Courts continue to be keenly aware of counsel's efforts--or lack thereof--to resolve e-discovery issues before seeking judicial assistance. 

Important e-discovery Lessons  You can win a lawsuit and still lose on e-discovery issues. Keithley Inc., 2008 US District LEXIS 61741  Keithley won summary judgment but still had to pay $283,000 in fees for failing to preserve and produce required electronic evidence.  If all you have is back-up tapes you are still be required to produce data. Disability Rights Council of Greater Washington , Washington Metropolitan Area Transit Authority 2007 US District LEXIS 39605  Production of email from backup tapes was ordered by the court at the expense of the producing party.

e-discovery Lessons Continued  You might have to produce data no matter how difficult it is or how much it costs. Auto Club Family Insurance , Aher 2007 WL 2480322 (E.D. LA. August 29, 2007)  “Like other courts that have addressed this issue the court will not automatically assume that an undue burden or expenses may arise simply because electronic evidence is involved.” “In the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.”

What Does This Mean?  Potential Penalties  Failure to produce documents may lead to sanctions such as:     Monetary fines Exclusion of evidence Adverse instructions to the jury Summary judgment/case dismissal  Unreasonable burden claims  SAFE Harbor provisions of the FRCP are not necessarily afforded to parties that do not adequately protect data  Electronic data is assumed to be searchable  Failure to have a system in place will not cause SAFE Harbor exception in most cases

Freedom of Information (FOI) Sunshine Laws  Freedom of Information Acts (FOIA) apply to information generated by public officials.  FOI stipulates that all electronic information including email generated by employees on public computers must be retained and be accessible to the public.  These rules apply to public schools and other non profit organizations.  Email is subject to disclosure if it relates to a matter of public business and is not specifically exempt.

Freedom of Information Act Rules States State law implies that email is a public record but does not specifically mention it AL, AK, CA, IN, KY, MO, MI, MN, MT, NE, OK, OR, SC, TN, VT, WA State law specially states that email is a public record AZ, AK, CO, CT, FL, GA, IL, ME, MD, MA, MO, NM, NY, NC, PA, RI, VA State law exempts personal email UT, WV, DC State law does not address the issue of email DE, ID, MS, NV, NH, NJ, ND, OH, SD, WI, WY Other HI request on case-by case basis DE, ID, MS, NV, NH, NJ, ND, OH, SD, WI WY, TX email generally not public record. All requests analyzed and can be covered. Email sent from a personal email account on a government computer may be public.

Sunshine Laws  Becky V Butte- Silver Bow School Dis 1 Public writings     defined as “documents generated or maintained by a public body which are somehow related to the function and duties of that body” Email is implied to fall under the Acts purview as public record. Individuals can sue to have decisions overturned good resource

MT Sunshine Law  STATE LAW ON ELECTRONIC RECORDS  Electronic information is treated like printed information. Mont. Code Ann. § 2-6-110(1)(a). - See more at:

Lasko v DOJ  Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"

Lasko v DOJ  Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"

GARP Generally Accepted Recordkeeping Practices (GARP) Under GARP public records such as student transcripts are covered by State records retention policies. Email is not the location for these records to be held such records should be kept in the system maintained for it (SIS or Assessment) Message archiving is not the platform to comply with GARP rules    GARP is designed to  Facilitate and sustain day-to-day operations  Support predictive activities such as budgeting and planning  Assist in answering questions about past decisions and activities  Demonstrate and document compliance with applicable laws, regulations, and standards And is based upon 8 principles  Accountability  Integrity  Protection  Compliance  Availability  Retention  Disposition  Transparency

GARP Lessons from GARP  Records kept where they belong are then not records in email  Policy of retention for these documents does not require email to be archived for these periods  Have a policy and enforce it  Enron  Think about how you may be able to make data driven decisions or manage risk

Regulatory Compliance  Many information retention requirements imposed by regulatory agencies such as the Securities Exchange Commission (SEC) and the Financial Industry Regulatory Agency (FINRA) Sarbannes Oxley (SOX) may apply to public and non profit organization as well.

Storage Management, Disaster Recovery & Green Initiatives or… What’s in it for me?

Storage Management  Storage of email consumes many gigabytes of server capacity each year.  Some hosted archiving solutions reduce storage on email servers by “stubbing.”  Making a copy of the email and/or attachments and replacing it with a small stub file  Allows for user access to email  Journaling is not the same as archiving and can actually increase demands on storage

Disaster Recovery  Backups only provide a recent copy for recovery in the event of disaster and mail can be lost between backups.  Offsite/safe storage of backups can cost money and time.  Archiving often will provide:  Total data integrity  Secure off site automatic storage  Easy recovery of all email data at all levels: database, mailbox and individual messages  Vital –“Records that are fundamental to the functioning of an organization”…”They contain information necessary to recreate an organization’s legal and financial status and to preserve rights and obligations of stakeholders”. These records are needed to operate within the first 30 –45 days following a disaster.

Green Initiatives  More than 70% of all electronic information is never printed.  Email is the number one form of electronic communication, surpassing the telephone.  The easy search and retrieval capabilities of archiving allow easy access of not just email but attachments as well, reducing the need for printing.  Hosted archiving solutions maximize data storage efficiencies. Fewer servers = lower power consumption

Risk Management  Archiving can help your district reduce the overall cost of lawsuits and FOI compliance by:  Shortening the document production time resulting in hard cost savings of internal staff time  Avoiding significant legal expenses or fines  Reducing overall cost of litigation  e-discovery represents 35% of the total cost of litigation Pillsbury Winthrop Shaw Pittman LLP  Enabling early decisions as to liability/likelihood of victory  Reducing public relations damage from negative press

What Solution is Right for Me?

In House or Hosted? Hosted  Advantages         No special hardware or software required Secure off-site storage Ability to support mobile devices Total data integrity (personnel cannot alter or delete messages.) 24/7 access One archive for multiple platforms Customer/technical support Data center redundancy  Disadvantages  Data not physically on-site  Limited customization

In House or Hosted? In House  Advantages      Data on site May have ability to customize Can be cost effective District administration Customer/technical support with service contract  Disadvantages  Data on-site  Service contract can be expensive  Man power required  May not support multiple platforms or mobile devices

Learn More…  Visit our website  Send us an email  Give us a call 1-800-288-7750 Thank You!

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