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Tuesday, 4 November 2008
Save that email - and avoid legal headaches
When Ray Tomlinson created the email system in 1971, little did the programmer know that he would significantly impact the legal system through the discovery of electronic evidence for litigation cases across the world.
When Ray Tomlinson created the email system in 1971, little did the programmer know that he would significantly impact the legal system through the discovery of electronic evidence for litigation cases across the world.
Thirty-three years later, in 2004, the Sedona Conference Working Group Series defined electronic discovery as ‘the discovery of electronic documents and data . . . including email, Web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are ‘electronic’ if they exist in a medium that can only be read through the use of computers. Electronic discovery is often distinguished from ‘paper discovery’, which refers to the discovery of writings on paper that can be read without the aid of some devices.’
Topping the list as the most requested item in lawsuits in the present time, emails contribute an estimated 75 per cent of all electronic evidence produced in courts worldwide.
Emails have become crucial assets to any business as they hold critical information ranging from a company’s business strategy, its profit and loss, intellectual property, customer histories and contract details, apart from the daily communication with the company’s internal and external parties. Research has further established that over three-quarters of a company’s intellectual property is stored in emails.
Having already impacted the businesses of big names such as Merril Lynch, Morgan Stanley, Intel and PSEG Power in New York, e-discovery is quickly becoming a concern for businesses as the inability to produce an email in its authentic form may cost millions of dollars in legal fees, or prosecution for withholding or destroying evidence, as seen in the case of Enron and Arthur Anderson. In Singapore, the Infocomm Development Authority (IDA) has enacted the Electronic Transactions Act (ETA) to set the basic legislative framework for e-commerce and electronic transactions that cover matters such as electronic contracts, electronic records and signatures. This was primarily adjudicated to remove existing legal impediments and instill a belief in businesses and individuals in e-transactions and communications.
Companies in Singapore (especially small and medium-sized enterprises) are conscious of the dangers that lurk behind the email and Internet transactions. Internal security breaches are quickly gaining a reputation for becoming a sore point of corporate legal contentions.
Research conducted by Access Markets International (AMI Research) last year found that Singaporean companies are adopting more security and storage solutions with the rise of internal security breaches - a common reason for companies being brought to court due to a breach of trust or a violation of a contract, solely because of an email that was unintentionally sent to a third party.
In 2007, over 23 per cent of small businesses and 30 per cent of medium-sized businesses suffered at least one security breach, which significantly increased the need for security investments among SMEs.
Businesses in Singapore have evolved from investing in the more popular security solutions such as anti-spam, anti-virus and anti-spyware products to the more sophisticated message archiving and storage solutions which enable businesses to retain and safely store emails as required by compliance laws in the country.
Last year alone, local SMEs spent close to $80 million on storage solutions. With a five-year compound annual growth rate (CAGR) of 12 per cent, the total investment is set to hit a whopping $142 million by 2012.
When representatives of a company are brought to a court of law, they are required to produce evidence in its authentic form. Emails or documents that have been modified are not eligible for evidence submission and judgments have been overturned in the past due to the questionable authenticity of an email, which also affects credibility of the defence or plaintiff.
The Singapore Academy of Law noted in its journal last year how Judicial Commissioner Sundaresh Menon of the Singapore High Court reinforced in the Hong Leong Singapore Finance Ltd vs United Overseas Bank Ltd case the role of solicitors in ensuring that clients clearly understand the importance of protecting evidence and documents that may possibly affect the case, and the consequences that could arise from an inability to produce the documents.
Authenticity
Critical to the case, an email’s authenticity can be proved through digital fingerprints or time stamps on each email in storage. Emails stored with encryption also prevent tampering and help protect the privacy of the message. If a user modifies the information in his or her inbox, the original copy will not be affected and can be brought in as evidence in a court of law - on condition that the sender has not deleted the email from his or her own inbox.
A logical way to think about this is: when an email is sent, there is always a minimum of two available copies - one with the sender, and the other with the receiver - with additional copies saved on USB drives or printed paper. The discovery of these other pieces of ‘evidence’ can and will support the initial evidence submission to the court if the original and authentic email cannot be produced.
In some cases, a single missing email needed for a lawsuit could lead to accusations of withholding evidence, with a possibility of financial and administrative penalties for the guilty party. In March last year, AMD accused its competitor Intel of allowing evidence to be destroyed after the documents were found to have been automatically purged by Intel’s email system. Intel spokesman Chuck Mulloy was later quoted as saying that Intel was spending ‘millions’ looking for emails, reconstructing its email traffic and creating a new backup system.
A single investment in a comprehensive message archiving solution will not only optimise the company’s mail system by reducing mail server data by up to 80 per cent and increase employee productivity through easy access to vast amounts of intellectual property within the email system, but will also protect the company during lawsuits or regulatory audits through a built-in e-discovery and compliance capability.
Research shows that employees are losing $175 worth of productivity per month trying to manage their emails or searching for information in their inbox. For a company with a 300-strong staff, that’s a total loss of $630,000 in productivity a year - a far bigger loss than the $15,000 investment that a company with 300 employees would need for a message archiving solution.
Though many companies still take a ‘wait-and-see’ approach, a message archiving solution would enable company representatives to swiftly produce documents, in their authentic form, as and when requested by a court of law, regulatory investigations or compliance audits. The archiving solution would play an important role in helping the company avoid the legal implications of not being able to produce the necessary documents, and eliminate the additional financial and physical resources needed to manually produce the article.
The writer is MD of Trend Micro, Asia South and Hong Kong, and has over 16 years of working experience in IT
1 comment:
Save that email - and avoid legal headaches
By GOH CHEE HOH
4 November 2008
When Ray Tomlinson created the email system in 1971, little did the programmer know that he would significantly impact the legal system through the discovery of electronic evidence for litigation cases across the world.
Thirty-three years later, in 2004, the Sedona Conference Working Group Series defined electronic discovery as ‘the discovery of electronic documents and data . . . including email, Web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are ‘electronic’ if they exist in a medium that can only be read through the use of computers. Electronic discovery is often distinguished from ‘paper discovery’, which refers to the discovery of writings on paper that can be read without the aid of some devices.’
Topping the list as the most requested item in lawsuits in the present time, emails contribute an estimated 75 per cent of all electronic evidence produced in courts worldwide.
Emails have become crucial assets to any business as they hold critical information ranging from a company’s business strategy, its profit and loss, intellectual property, customer histories and contract details, apart from the daily communication with the company’s internal and external parties. Research has further established that over three-quarters of a company’s intellectual property is stored in emails.
Having already impacted the businesses of big names such as Merril Lynch, Morgan Stanley, Intel and PSEG Power in New York, e-discovery is quickly becoming a concern for businesses as the inability to produce an email in its authentic form may cost millions of dollars in legal fees, or prosecution for withholding or destroying evidence, as seen in the case of Enron and Arthur Anderson. In Singapore, the Infocomm Development Authority (IDA) has enacted the Electronic Transactions Act (ETA) to set the basic legislative framework for e-commerce and electronic transactions that cover matters such as electronic contracts, electronic records and signatures. This was primarily adjudicated to remove existing legal impediments and instill a belief in businesses and individuals in e-transactions and communications.
Companies in Singapore (especially small and medium-sized enterprises) are conscious of the dangers that lurk behind the email and Internet transactions. Internal security breaches are quickly gaining a reputation for becoming a sore point of corporate legal contentions.
Research conducted by Access Markets International (AMI Research) last year found that Singaporean companies are adopting more security and storage solutions with the rise of internal security breaches - a common reason for companies being brought to court due to a breach of trust or a violation of a contract, solely because of an email that was unintentionally sent to a third party.
In 2007, over 23 per cent of small businesses and 30 per cent of medium-sized businesses suffered at least one security breach, which significantly increased the need for security investments among SMEs.
Businesses in Singapore have evolved from investing in the more popular security solutions such as anti-spam, anti-virus and anti-spyware products to the more sophisticated message archiving and storage solutions which enable businesses to retain and safely store emails as required by compliance laws in the country.
Last year alone, local SMEs spent close to $80 million on storage solutions. With a five-year compound annual growth rate (CAGR) of 12 per cent, the total investment is set to hit a whopping $142 million by 2012.
When representatives of a company are brought to a court of law, they are required to produce evidence in its authentic form. Emails or documents that have been modified are not eligible for evidence submission and judgments have been overturned in the past due to the questionable authenticity of an email, which also affects credibility of the defence or plaintiff.
The Singapore Academy of Law noted in its journal last year how Judicial Commissioner Sundaresh Menon of the Singapore High Court reinforced in the Hong Leong Singapore Finance Ltd vs United Overseas Bank Ltd case the role of solicitors in ensuring that clients clearly understand the importance of protecting evidence and documents that may possibly affect the case, and the consequences that could arise from an inability to produce the documents.
Authenticity
Critical to the case, an email’s authenticity can be proved through digital fingerprints or time stamps on each email in storage. Emails stored with encryption also prevent tampering and help protect the privacy of the message. If a user modifies the information in his or her inbox, the original copy will not be affected and can be brought in as evidence in a court of law - on condition that the sender has not deleted the email from his or her own inbox.
A logical way to think about this is: when an email is sent, there is always a minimum of two available copies - one with the sender, and the other with the receiver - with additional copies saved on USB drives or printed paper. The discovery of these other pieces of ‘evidence’ can and will support the initial evidence submission to the court if the original and authentic email cannot be produced.
In some cases, a single missing email needed for a lawsuit could lead to accusations of withholding evidence, with a possibility of financial and administrative penalties for the guilty party. In March last year, AMD accused its competitor Intel of allowing evidence to be destroyed after the documents were found to have been automatically purged by Intel’s email system. Intel spokesman Chuck Mulloy was later quoted as saying that Intel was spending ‘millions’ looking for emails, reconstructing its email traffic and creating a new backup system.
A single investment in a comprehensive message archiving solution will not only optimise the company’s mail system by reducing mail server data by up to 80 per cent and increase employee productivity through easy access to vast amounts of intellectual property within the email system, but will also protect the company during lawsuits or regulatory audits through a built-in e-discovery and compliance capability.
Research shows that employees are losing $175 worth of productivity per month trying to manage their emails or searching for information in their inbox. For a company with a 300-strong staff, that’s a total loss of $630,000 in productivity a year - a far bigger loss than the $15,000 investment that a company with 300 employees would need for a message archiving solution.
Though many companies still take a ‘wait-and-see’ approach, a message archiving solution would enable company representatives to swiftly produce documents, in their authentic form, as and when requested by a court of law, regulatory investigations or compliance audits. The archiving solution would play an important role in helping the company avoid the legal implications of not being able to produce the necessary documents, and eliminate the additional financial and physical resources needed to manually produce the article.
The writer is MD of Trend Micro, Asia South and Hong Kong, and has over 16 years of working experience in IT
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