Unless you are a litigation lawyer or legal/IT consultant, you probably aren’t aware that new rules governing the use of electronic records in the federal court went into affect in December of 2006. Specifically, I am talking about Federal Rules of Civil Procedure - Rule 37 section (f), or FRCP Rule 37(f) if you are in the know, which addresses the issue of record retention.
But, before going any further, I do want to give the formal disclaimer: This posting is not to be considered legal advice, and you should seek competent legal counsel for your specific situation.
OK, with that out of the way, let’s get to the heart of the matter. The FRCP are long and detailed, but the one we are most interested in for today is Rule 37(f), which states:
(f) Electronically Stored Information
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Don’t you just love legalese?! If your eyes, like mine, glazed over while reading the statement above, have a look at the Companies unprepared to comply with new electronic discovery rules article in Network World, which summarizes the issue nicely from an IT perspective.
What it comes down to is the need to preserve your electronic records, which includes email. How you preserve the records, and for how long, is up to you to decide. What the court is looking for is the fact that your organization has a consistent policy and a routine procedure for keeping and deleting electronic records. In other words, you can’t start to shred electronic records when it looks like you are headed to court like the infamous incident with Enron records at the now defunct Arthur Andersen.
Given that Accellion customers often use secure file transfer appliances as a complement to email attachments, the natural question is what the impact on the retention of attachments is, given the new procedures.
The first thing that you want to think about is what constitutes an electronic record. Is it just the text of an email message? Does it include the attachment? How about the audit trail that tells you who did what, and when? There's no definitive answer, so it's up to your company to set the definition. And, whatever you call a record, the onus is on you to be consistent in the way you define it and treat it.
If you decide to store your attachments as part of your electronic record, Accellion's automated policy-based file life-cycle management control can help. On one extreme, you can decide to keep a file on an SFTA for 10 years. Alternatively, I have heard cases where the retention policy is now moving toward no more than two weeks. Whatever the period, it is a simple setting in the Accellion SFTA. In other words, by using the automated file life-cycle tool for all the users, you are, by default, handling your files in a routine way, which satisfies the needs of FRCP Rule 37(f).
Because the new FRCP Rule 37(f) went into affect a few weeks ago, now is a good time to give serious thought to your retention policies. And, with the automated file life-cycle tool, Accellion SFTA provides a platform tool for an organization to create compliant processes without hiring a new army of administrators to meet the needs of the regulation.