Don’t Hit That 'Delete' Button!

• 04/01/09

In response to new federal rules mandating organizations retain their electronic documents, districts are using outside providers to archive their in-house e-mails.

ON DEC. 1, 2006, the once ambiguous role of e-mails in court cases became much more clear. On that day, the Federal Rules of Civil Procedure, which govern federal civil litigation, were amended to establish standards for the discovery of electronically stored information, now known as e-discovery.

"The FRCP now treats electronic documents no differently from paper-based documents," explains John LoPorto, executive vice president of sales and marketing for electronic archiving and security provider Privacy Networks. So should corporations, organizations, or schools ever have to participate in a court case involving federal violations such as copyright infringement, sexual harassment, unsafe work environments, or fraud, their e-mails will be considered as possible evidence. "Hence the need to save e-mail," says LoPorto. "In 2007 and 2008, industry associations [in all markets] started educating their members on what they had to do to comply with the new FRCP."

Many corporations began moving quickly to implement comprehensive e-mail archiving solutions to comply with the new rules, as well as federal statutes such as the Sarbanes-Oxley Act and the Fair Labor Standards Act, which also include language that instructs organizations about e-mail retention. K-12 schools, however, have been slower to act, partly because they don't have to comply with as many of the same federal regulations as their corporate counterparts, and partly because of perceived increases in the cost and workload associated with these archiving solutions.

It has only been within the last year or so that school districts were pushed into saving their e-mails, spurred by the K-12 ed tech organization Consortium for School Networking, which took up the cause in a June 2008 white paper titled "School Districts, Data Retention, and Federal E-Discovery Rules: The Case for a Full E-mail Archiving Solution Now." The paper brought to light the need for school districts to archive their e-mail not only for the purposes of satisfying federal e-discovery requirements, but also as part of a comprehensive disaster recovery and business continuity plan.

River Oaks Baptist School in Houston is among the schools that have begun archiving e-mails through the services of an off-site host, a decision prompted by its experience during Hurricane Katrina, which exposed the inadequacies of its Microsoft Exchange server and the need for a revised disaster recovery plan.

"As we were looking at our DR plan, we kept running into the fact that our Exchange server-- our mission-critical appliance-- was incredibly vulnerable to power outages," says Mike Honn, the K-8 school's director of technology. "We thought of a lot of other ways of doing e-mail, like using Gmail or Yahoo Mail that can be accessed anywhere, but we came to the conclusion that we needed to move our Exchange server off-site. It was natural for us to extend that strategy to archiving."

In mid-2008, River Oaks went with Google Apps, a hosted service that provides simple e-mail backup and restore functions offered mainly as part of a disaster recovery and business continuity solution. Google Apps includes Google Message Discovery, an e-mail archiving management application that contains security and e-discovery features essential to mitigating legal matters involving a school. "Generally speaking, things come up after someone has been fired or when a student leaves eighth grade," says Honn. And by having the e-mails available in case of a lawsuit, "there is no faking it. You have the proof.

"For us, the choice to archive is a no-brainer on multiple levels. We view it as protection for the school, the employees, and the students."

Besides supporting sound legal safeguards and disaster recovery plans, off-site e-mail archiving has emerged as a viable solution for organizations whose IT budgets continue to be slashed. According to market research firm Osterman Research, e-mail archiving providers will make up about $1 billion, or two-thirds, of the total projected archiving market revenues of $1.5 billion in 2011, compared to about $203 million-- only a third-- of the $609 million market in 2008.

Although pricing for a hosted environment can vary among service providers and is based on number of seats, services offered, and education discounts granted, the hosted model does provide a known cost each month, helping school districts manage their IT budgets more efficiently. "We're seeing more school districts and smaller public sector entities not having the capital budget to implement this type of solution in-house," says LoPorto. "They want to go to a cost structure that has a recurring line-item budget. [Outsourcing] fits."

According to Martin Capurro, director of product management at voice, video, and data services provider Qwest, moving to hosted solutions also allows district IT departments to hand off some of their workload. "Beyond business reasons on the surface, there is also the story around business continuity-- being productive when you can't be in school," he says. "A hosted environment is a good way to get the work done."

Honn agrees. He says that once River Oaks decided to host its Exchange server off-site, a third-party e-mail archiving solution made sense, since it lifted an extra burden off the district. "It's a bit complicated when you're not hosting your Exchange server on-site to get archiving to work properly," he says.

However, moving to a hosted archiving model means districts must be willing to give up some ownership-- and Capurro says they are. "We're no longer in an environment where you need to own the infrastructure," he says. "School systems are embracing the technology. I'm actually surprised that a good chunk of school districts are very progressive, and very open to these implementations."

Once districts decide to use hosted solutions, they need to carefully consider what types of services will meet their needs. All e-mail archiving providers offer backup and restore services-- what LoPorto terms "operational archiving"-- with some bundling into disaster recovery offerings. A number of schools employing a hosted model are starting with operational archiving and migrating into a solution that can satisfy federal e-discovery mandates-- what LoPorto calls "legal compliance archiving"-- as their comfort level increases.

"Operational archiving does all the indexing of the e-mails, attachments, etc., and makes it easy to search and find," he explains. "It does not provide an auditable chain of custody required for legal compliance."

That extra feature is an important one, according to Steve Berens, Privacy Networks' president and CEO. Districts need it as protection in the event of lawsuits brought against teachers and administrators by students both current and former. "With an open records request in a school environment, the courts want to know if a school district found everything that can be possibly found between two parties," Berens says. "You have no credibility if you can't show you have all these things."

Legal compliance archiving also ensures that regulations included in the Health Insurance Portability and Accountability Act (HIPAA) pertaining to the protection of private health information are met, which is of particular importance in the case of students with disabilities or special education students.

The Google solution that River Oaks uses for archiving its e-mail offers expanded auditable services in addition to backup and restore functionality.

"We also provide tools to extract, locate, and take action on e-mail, and the ability for the administrator to search the entire archive or an authorized subset of those users," says Bill Kee, product marketing manager for Google Message Discovery. "We then can take the search results and place them on a litigation hold, which then exempts those records from the retention period, and they can be exported into a few formats and turned over to the [district's] in-house discovery team or to outside counsel."

Although K-12 districts have lagged behind in adopting e-mail archiving technologies, LoPorto predicts that will soon change. "Over the next 12 to 24 months, we'll see a big spike in school districts deploying this [technology]," he says. "School districts can be fully compliant at an attractive price, and they can move on to worrying about what they need to-- educating students."

Charlene O'Hanlon is a freelance writer based in New York City.