Companies risk inadequately protecting themselves from litigation by flaws in their e-mail archival policies

An independent survey, commissioned by e-mail management specialists Mimecast, shows that many British businesses are failing to put in place effective procedures to archive and retrieve e-mails, which could jeopardise their ability to defend themselves effectively in a legal dispute.

The research, conducted amongst 125 IT managers by market research company emedia, discovered that 25% of companies are unable to access an e-mail sent three years ago. What's more, 69% of companies cannot produce a comprehensive e-mail audit trail of these records that would be admissible in court as evidence.

The speed and effort involved in retrieving e-mails from several years ago was also a factor: 29% of respondents admitted that it would take them days or even weeks to retrieve a copy of a three-year old e-mail. One possible explanation for the difficulty in retrieving e-mail could be explained by another finding, showing that 42% of IT managers consider that it is not their responsibility but that of the individual employee to store and manage their own e-mails. An additional 15% believe that it is down to the board of management to define e-mail management policies, which it is their duty to enforce.

James Blake, Chief Product Strategist at Mimecast, believes that this lack of forward planning leaves a large number of companies exposed to substantial risk of being unable to defend themselves adequately in the event of civil or criminal litigation. He adds: “It's a fact of life that the majority of organisations get involved in some sort of litigation process at some stage in their development. Being able to assemble a full and complete record of e-mail evidence allows you to accurately assess the case either for prosecution or defence purposes and is vital to determining the best course of action. E-mail is the de facto communications method for businesses and is a key element of presenting or defending a legal case, as well as proving compliance with industry regulations. Technologies, like Mimecast's cloud-based computing service, have the advantage over server-based e-mail security and archival systems, of being able to offer a bottomless, secure e-mail archive capable of providing a comprehensive audit trail to show who was copied, delivery receipts, content attachments as well as a full record of all related e-mails, which is accessible in an instant.”

Stewart Room, partner and technology specialist at legal firm Field Fisher Waterhouse and author of “E-mail: Law, Practice and Compliance”, commented: “Being able to give full disclosure of e-mails in litigation is only one of the challenges facing organisations; they also need to ensure that their e-mails are of sufficient probative value and evidential worth. This needs technologies which can produce comprehensive and accurate audit evidence of all key events that have happened to the e-mail after its initial sending or receipt.”