Archiving offers a range of benefits

Investigating what’s behind the buzzwords “email archiving” and “e-discovery” will potentially reveal considerably more benefits than just cost savings and increased productivity.

Organisations are having to manage volumes of email that are set to nearly double in the next two years. Other business communication formats are also increasing: IT analyst organisation, IDC, predicts that instant messaging (IM) will grow faster than email, with annual increases of 23.5 percent expected through to 2011.

Storing emails, IMs and other electronic documents such as desktop documents, ERP documents and data, images, voice, video and other corporate records may initially appear relatively inexpensive and easy thanks to the commoditisation of storage – but ensuring you can search, preserve and retrieve specific items from those storage devices quickly and easily is less straightforward – and becoming increasingly more important.

Many IT executives are under a misconception that software-based digital archive and retrieval systems cannot handle the volume and types of data produced by organisations as well as the breadth of requirements. However, there are a host of companies and government departments that have implemented archives capable of capturing all digital content, including emails and IMs, and have reduced not just costs but also risk as a result of more efficient data management.
It is essential that the archiving solution enforces the organisation’s records management policies, dictating what records need to be retained, how and for how long.

Significant benefits

IT decision-makers should investigate an archiving solution that can not only reduce infrastructure and operational costs (storage, backups and IT support) but also deliver other functionality such as:

• archiving for regulatory compliance
• proactive surveillance and monitoring
• data retention
• e-discovery.

The right tool should deliver these significant benefits:

• documents requested in a legal case can be produced quickly
• good corporate governance
• maintaining investor confidence
• risk mitigation
• share price protection
• reputation management of the company and its brands
• less reliance on external legal firms
• reduced litigation costs
• and importantly, increased user productivity because users want to keep everything and expect a Google-like experience when it comes to searching for their historical records.

The numerous regulations and laws in Australia that cover document retention take account of electronic records, which carry just as much evidentiary weight as paper-based records.

Legal issues to be considered

Some of the more common legal retention and destruction obligations for electronic records include:

• The Corporations Act: “financial records” to be kept for seven years
• Income Tax Assessment Act: tax records to be kept for five years
• Workplace Relations Acts: covering industrial relations, long-service leave and workers’ compensation where records need to be kept for minimum periods that vary between six and seven years
• Privacy Act: organisations have an obligation to destroy personal information no longer retained for a permitted purpose.

Other statutes that companies and government need to be aware of include:

• CLERP 9
• Australian Prudential Regulation Authority Guidelines
• Australian Standards
• Archives Act
• NSW Workplace Surveillance Act 2005
• Australian Standard on Compliance (AS3806)
• Australian Standard for Records Management (ASISO 15489)
• Basel II
• Commonwealth Evidence Act 1995
• Commonwealth Electronic Transactions Act 1999
• International Accounting Standards (IAS)
• QLD Recordkeeping (IS40)

Two other acts worthy of elaboration are the Crimes (Document Destruction) Act 2006 (Vic) and Evidence (Document Unavailability) Act 2006 (Vic).

Companies operating in Victoria need to be aware of this government legislation that prohibits individuals or corporations from intentionally destroying documents that may at some future time be needed as evidence in court. If convicted, the maximum sentence is five years imprisonment or a fine of $62,886 for individuals and $314,430 for corporations.

In addition, a significant penalty can be applied where a judge may instruct the jury that the destruction of the evidence should give rise to an adverse inference regarding liability. More seriously, the judge might order that the defence be struck out (ignored) by the jury, so the plaintiff wins by default. Thus, corporations and individuals may, by destroying documents, make it much more likely that they will lose the case and be subject to considerably greater sanctions in terms of awards of damages than those nominated under the act.

These two offences relate to the destruction of a document or other object that is reasonably likely to be required in evidence in a legal proceeding. It is important to note that these acts create this offence in situations where no litigation has actually commenced (it has always been illegal to destroy evidence once a case has actually been launched).

This covers circumstances where an individual or organisation destroys documents that may, at some future time, be needed in evidence and where this need can be and has been anticipated.

Victoria is the first state to create a specific document destruction offence whereby a corporation can be prosecuted in circumstances where, even though there was no direct instruction by the organisations to destroy a document, it was implied by the corporation’s culture. In addition to destroying a document, it is also a crime if they prevent the documents being used in evidence, such as concealment or rendering them illegible. This includes emails and
their attachments.

In addition to the legal and regulatory requirements, organisations can have their own policy needs to retain corporate records for their business value.