If your company was sued and you were forced to disclose historical emails relating to the case, how would you prove that those documents hadn't been altered or tampered with? If the other party had altered their emails, how would you prove that your originals were the authentic copies?
Electronic discovery is still a new field. And depending on where you live and what regulations govern your industry, there is still a lot of debate and disagreement about how judges and lawyers should approach the subject of electronic data disclosures.
The IT department and the company's legal team need to work together in establishing best-practices for staying well ahead of the debate and ensure that the right information can be found quickly in case of litigation, and that this information will be accepted by the courts as reliable and trustworthy.
Although most companies already adhere to deletion and retention policies suggested by legislation, proving the accuracy of this information can be a bit of a challenge.
The biggest problem with presenting email backups as evidence is that they can be altered.
If your company backs up on a daily basis, there will be a period of time between when an email is sent/received and when the backups occur. Because of this, you can't ensure that the emails you're presented are identical to the originals. In order for your email backups to be completely accurate, you must capture the emails instantly at the point of entrance or exit.
Also, you might be asked to prove that these emails hadn't been altered after the backup.
This can be very challenging, but there are a number of techniques that can help in accomplishing this. One way is to create an audit trail, with message activity logs that list every action taken on a message since it was first archived. Also, this system should capture entire emails, including header information and attachments.
Finally, another idea would be to have an independent third party archive your data for you. This way, you'd have someone outside of your company who can vouch for the accuracy of your archives.
Of course every scenario is different, and you should talk to your lawyer before putting together any regulatory compliance strategy. But these points should certainly be brought up in discussion as possible solutions.
If you're ever asked to prove the authenticity of your electronic documents in court, these are important points to think about.