It is important to get past the "vendor hype." But, where there is smoke, there is often a fire. It is important to blow away the smoke and look at what is really going on. While I am not an attorney, I speak often about the Federal Rules and work very closely with K-12 schools.

First, there actually is no requirement in the Federal Rules of Civil Procedure that dictate that anyone has to archive anything. Rather, it says that if an electronic document exists "in the possession, custody, or control of the party" then it must be produced. This phrase is critical. Most people believe that this means that if an employee has a document on their laptop or home computer, then it is within the organizations custody and control, even if it is not physically on site. Therefore, without a centralized archive, organizations would need to do an costly and time-consuming exhaustive search of everyone's system. The conclusion made by most IT people is that a centralized archive is the easiest way to meet the retrieval requirement. It also adds the benefit of storing unedited documents.

There is an exception to the above statement about not keeping documents. The Rules are very specific about "litigation hold" and the need not to destroy potential evidence. (There is a very significant case on this matter, Testa v Wal-Mart Stores.) A central archive can limit liability if a faculty or staff member deletes an item that should have been on litigation hold.

While these rules apply to every organization in the company, schools are concerned because the risk of litigation is so high and they have many requirements. One of the more pervasive requirements that impact almost every school are state open meeting laws, such as the Brown Act in California. It is generally agreed that e-mails among a majority of School Board members are public documents because they constitute a public meeting and must be made available for disclosure to the public and the media.

This is where the FRCP, or its state equivalents, come into play: If a School Board member has an email subject to the open meeting laws on his/her computer, the School Board member is seen as being in "control" of the information in his/her official capacity. Therefore, the IT director would need to get the relevant document. Boy, wouldn't that be easier if the email was on a central source.

Other issues especially interested to school emails involve sex with minors, child pornography, and threats of violence. Many of these became visible to the authorities because of email disclosures. As a result many schools believe that archiving emails AND content monitoring are prudent steps for protecting children.

Several authors argue that some school districts are underfunded and under staffed for the extra work. I must agree. Anything that takes a dollar away from educating a student is a bad thing. However, even small schools should not be exempt from open meeting laws and other litigation. If it matters, small business is effected by this too. The recent case of 245-employee Taser International shows that small companies also must do whatever is necessary to abide by the law.

I have more about this topic on my blog, Death By Email