[teknoids] E-discovery (was RE: Email Quotas)

Tom Franken tom at tomfranken.com
Mon Aug 9 16:21:56 EDT 2010

The courts have dealt with this under the Fed Rules of Civil Procedure.  A
reasonable summary is at:


Rule 26(b)(2) (described in part 4) discusses information that is not
reasonably accessible.  Basically, it says you cannot be required to produce
information if it would be unreasonably expensive.  Rule 37(f) (described in
part 6) provides for protection from discovering information that is lost
due to the good-faith efforts of normal business operations.  Put the two
together and if you can show a good-faith reason for not storing information
in an easily accessible manner, you will not be held liable for not
producing the information.

An example: A typical policy of an organization is to back up an e-mail
system once a week and flush the transaction logs.  Maybe the organization
keeps the weekly backups for some time.  Someone produces an e-mail from a
date several months ago but it was a reply where part of the original was
not kept in the reply (thank you user for limiting the strings in replies).
Now someone wants the original message restored.  It is probably reasonable
to require a restore of the e-mail from the back-up at the end of the week.
(A good practice is to have a test bed to perform restorations anyway.)
However, that backup does not have the original message because it was
deleted before the backup was taken.  If the transaction log files were
archived, a restore could be made to a point in time just after the message
was sent.  However, it is a normal, good practice to flush the logs once a
good backup is taken so no logs are available.   In this case, it is not
possible to restore the message.  Presumably, the organization would not be
sanctioned for not producing the document.

As far as I know, normal educational information has no requirements for
retention.  Certain grants may have specific requirements, you have student
records but those are not primarily stored in e-mails, and there are some
financial best practices; but what general requirements do schools have to
archive e-mails or other personal documents?  Why spend the time or energy
archiving something you don't need to? 

Tom Franken
Univ of Denver Sturm Col of Law
tom at law.du.edu 

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