The New Storage Rules

The Storage Argument
The fact that e-discovery is so closely tied to storage is driving storage solution providers such as Open System and Consiliant to move into this new business.

For Consiliant, the decision came after looking at all that data on customers' tapes and realizing that finding requested data in a short time frame is nearly impossible, Kadlec said.

"We're trying to take a technology solution to help $100 million-plus companies save money," he said. "When they are hit with litigation, they want to find data within days and say, 'Oh my God, here's the smoking gun, we better settle,' or say, 'Here's the data, we have a case.' "

E-discovery starts with storage hardware, said Benjamin Woo, vice president of sales and marketing at ASI System Integration, a New York-based solution provider.

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"If you don't have a good, solid, simple way to provide compliant storage, the rest is irrelevant," Woo said. "Customers have to get their storage taken care of, then they can look at what they need if they get sued. It's a basic function of ILM [information life-cycle management]: You need to identify the different parts of data, classify them and then search them."

Once the basic storage infrastructure is set up, it is important to work with customers to set policies about what data to keep and for how long.

Answers to those two questions depend on the type of data and how important it might be to future litigation. The Federal Rules of Civil Procedure provide something of a guideline in Rule 37, which states, "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."

To further define what stays and what goes, a solution provider likely will find itself working with the customer's legal staff.

"Lawyers say they want to get rid of all data ASAP," Dimension Data's Fox said. "If the customer doesn't have the data, they don't need to produce it. But it depends on the industry. For financial guys, lawyers say the faster they get rid of it, the better. But for compliance, they may need to retain the data for years. I don't see any easy answer to the question."

Making The Case
E-mail management is not only one of the most urgent issues for companies concerned about liability, but it is also a prime opportunity for solution providers, said Scott Robinson, CTO of Datalink, a storage solution provider in Minneapolis.

About 32 percent of businesses have not yet begun to implement an e-mail strategy that accounts for e-discovery requirements, while only 43 percent have just begun such an implementation, according to a survey conducted last year by AIIM, the Enterprise Content Management Association, Silver Spring, Md.

ASI works with Symantec Enterprise Vault to help customers with data management and e-mail management, Woo said, but he admits the software is not for every business.

And technology isn't the panacea.

While e-mail archiving is a good way to get involved in e-discovery, solution providers run the risk of installing a product only to have a customer come back in six months or a year because their e-mails are not being archived according to policies, said John Merryman, senior consultant for the strategy delivery practice at GlassHouse Technologies, a Framingham, Mass.-based IT consultant.

This problem stems in part from the divide between customers, who need solutions that comply with very specific policies and strategies, and vendors, who want to drive product sales.

"Customers may set a policy to purge e-mails after five years and then find out they need to keep them longer," Merryman said. "Or they migrate their e-mail to a new system and keep the e-mails forever. There's also a big risk in keeping them too long."

Talking to customers' legal departments is just as important as or more important than talking to their IT departments, Fox said.

"A lot of the time, we talk to customers' legal people about when to start and the impact on different parts of the company," he said. "The legal side has its needs, the IT side has its needs. We need to bring them together."