Don’t Hit That 'Delete' Button!
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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.
This article originally appeared in the 04/01/2009 issue of THE Journal.