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Data Retention: the Problem

    By all accounts the quantum of ESI currently stored by organizations is exploding. One historical study shows that the number of corporate e-mails sent daily is projected to increase at a compound annual growth rate of over 13%.The growth of instant messaging is similar with projected increases estimated to be at a compound annual rate of 43%. While each organization’s growth rate will differ, these estimates should come as no surprise to CIO’s tracking their respective rates.

    The combination of explosive growth and cheap electronic storage has caused significant confusion with respect to what constitutes an appropriate ERM policy. Approaches range from keeping everything “just in case” to the indiscriminate deleting of records with no policy justification at all. Moreover, email and instant messages are simply a subset of record types that must be addressed within the universe of records that an organization maintains. A piecemeal solution is almost guaranteed to cause wasted effort over time as the problem must be re-visited for subsequent record types.

    To add to the complexity, software vendors pushing technology centric solutions tend to minimize the importance of process issues because the hard of work of process definition impedes their ability to close the deal. Customers are justifiably confused by a bewildering array of options that all claim to solve the problem. Under pressure from corporate leaders "to do something" customers often begin by implementing a discrete "solution" that targets the pain point du jour.

    To further complicate matters, recent changes to the Federal Rules of Civil Procedure (FRCP) have (rightfully) raised the awareness of general counsel with respect to the importance of having a sound and defensible ERM policy. This development often contributes to a hastily developed policy/solution that focuses almost exclusively on eDiscovery and does not address many other business needs.

    To prevent an endless cycle of point solutions chasing a changing problem definition, a comprehensive and multi-disciplinary approach is required. This is not to question the validity of point solutions, but rather to suggest that such solutions must be implemented within a legal and technological framework that anticipates how various solution components interoperate, and one that accounts for all, or nearly all, organizational stakeholders.

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