Most inside counsel don't like e-mail. They believe it is evil. To be more specific, inside counsel worry that if an organization faces litigation, the e-mail they discover is much more likely to be hurtful than helpful. The fear is that employees send either irresponsible or poorly stated e-mails that, taken out of context, can come back to haunt. The plaintiffs bar, on the other hand, likes e-mail. One class action plaintiffs litigator likes to brag about the success he has had in “mining” e-mail: “Give me enough e-mail, and I'm sure I'll find something bad.” Even if employees are writing responsible messages, with so much e-mail (the average employee sends and receives more than 160 messages per day) the cost for discovering this accumulated mass of e-mail for a single large case can sink a corporate litigation budget. Yes, e-mail can sometimes help you; messages can be exculpatory, providing the only evidence of no wrong doing. Overall, however, most inside counsel simply do not like e-mail.

Therefore it is not surprising that many companies are taking active steps to delete e-mail early before it can do harm. The most common deletion technique is “aggressively” deleting any e-mails older than sixty or ninety days directly from the employees e-mail boxes on the e-mail server. Be careful. Although well-intentioned, we have found that these aggressive e-mail deletion strategies backfire, driving employees to save e-mails in places that keep them safe from being deleted but make them harder and more expensive to find during discovery.

I've coined the term for this “underground archiving.” Employees who see their older e-mails disappearing from their mailbox often save these messages in other places. They print them out. They will save offline copies of e-mail in standalone “PST” or “NSF” files (depending on your type of e-mail system) and then save these files on desktops, laptops, centralized file servers, USB drives, etc.

Some IT organizations have taken to disabling the ability to save e-mail in these offline files. So what do employees do? They step up this messaging arms race and send copies of e-mail home. One employee of a large financial services firm approached me after a seminar and explained how he sent copies of every e-mail he sent and received at work to his home account, and then burned these messages on CDs every three months, in clear violation of his employer's retention and privacy policies. Discoverable? Absolutely. Note: Many savvy plaintiffs counsel regularly demand the defendant search for relevant documents on employees' home computer systems.

Another ploy is employees will simply blind carbon copy e-mail messages to a GMail or Yahoo! account. Google currently offers users 7GB of free e-mail storage. And yes, these accounts are also discoverable. Of the many organizations we have reviewed that have aggressive e-mail deletion policies, nearly all had a substantial amount of–or at least some–underground archiving, and despite their intentions, actually had a significant amount of saved e-mail in the nooks and crannies of their IT infrastructure.

So, if aggressive deletion does not work, are we therefore cursed with ever-accumulating e-mail? Of course not. You can get rid of e-mail; you just need to be smart about it.

Today many companies are deploying “smart” archiving strategies that provide a reasonable, controlled and safer way of saving e-mail in one centralized place, typically using a centralized, automated e-mail archive. These organizations typically have liberal archiving policies and choose solutions that make archiving emails easier for the user, thus improving compliance and largely avoiding or diffusing underground archiving. Once the archive is available, IT then disables the e-mail system from allowing the creation of offline “PST/NSF” files. These steps are followed up with centralized, automated deletion after a year or two (based on the employee's role).We have found that organizations that take this approach typically save more e-mail initially but are much more effective at getting rid of older e-mail, especially since e-mail can be accessed and deleted from the central archive, and not in the elusive “PST” file. The focus turns from deleting already created messages to training employees to be more responsible in their email usage.

This involves reversing traditional thinking to achieve the same result. Inside counsel need to suspend their dislike of e-mail, and allow the organization to save more of it so it can be stored in the central archive. Once there, it is much easier to delete the medium- and older-age email, as well as discover what remains. Companies with smart archiving strategies typically have much, much less e-mail than those with “aggressive” deletion. That is a good thing.

This example also illustrates a larger lesson in compliance. While employee behavior can be encouraged, modified and monitored, any strategy that attempts to swim too long against a strong current of employee will and desire is likely to fail. If your program is not getting the results you want, take a step back and see if there is a smarter way to approach it.