Management and E-Discovery

E-Mail Management and

E-Discovery

Best Practices for Clean &

Email Agreement of endorsments

• London insurers playing catch up - Not rocket science!

• London brokers estimate that 35% of all their endorsements already done this way without any addtional legal framework or IT requirements. e.g. overseas markets

• However, if this is an issue for a given territory/client then consider the following:

> How can you prove the endorsement was sent?

> How can you prove what has been sent?

> How can you prove when you sent and received it? One solution is - http://www.rpost.com

Description:

R-Post provides legal and verifiable evidence of the content and time any e-mail has been sent and received by anyone, anywhere in the world.

 E-mail sent is not always received

 With a few clicks, e-mail can be easily altered

 Archives show only what was sent—not what was received or NOT

 Printed e-mail is not a verifiable record

Challenge: No Proof of Content & Context

Changing e-mail records can be as simple as editing the message and saving – just 2 mouse-clicks!

Did you know that you often can easily:

 Change text in any received e-mail?  Change the ―from‖ address?

 Change anything in the attachment?  Move e-mail to any folder?

 They are simple text files that can be easily forged

 They tell nothing about content received

 The recipient can opt not to return the receipt

Outlook Read Receipt and Settings

Can You Prove E-mail Actually Arrived?

* Ferris Research estimates that around 3% of non-bulk, business-to-business Internet email goes undelivered to its intended recipient. The two main reasons for non-delivery are legitimate messages wrongly identified as spam -- "false positives" -- and email sent to mis-typed

Business e-mail is not always delivered (spam

filters, wrong addresses, gatekeepers, junk boxes, simple deletion)

―I didn’t receive your e-mail‖

3% of non-bulk, business-to-business Internet e-mail goes undelivered to its intended recipient.*

Consider needs for preparation of evidentiary in the future

 Under procedural law, the rules of evidence apply

 Ensuring contract/agreement records are admissible in court

– Does it contain the transaction meta-data?

– Does it prove what content was associated with it?

– Can the time of signature or notice be verified?

– Can it re-construct the electronic original?

 Self-authentication vs. system authentication

 Simplicity / ease of maintaining, searching, retrieving records

 Portability / durability / sustainability of the evidence

 Evidentiary value – the weight of the evidence

A Worthy and Achievable Goal

Having the upper hand – or evidence that has greater weight – is valuable in any dispute resolution situation…in or out of court.

 Evidential weight is about reducing uncertainty surrounding the evidence

 A judicial officer or arbitrator will first examine the evidentiary value of what is submitted to determine its trustworthiness

 The party with the greater evidential weight will win in most cases, or at least mitigate their liability

 Registered E-mail® messages hold far greater evidential weight than traditional mail, courier, fax, or e-mail

 Registered E-mail® will provide the sender the upper hand in any legal discovery disputes and protection that will stand up to scrutiny in a dispute resolution

 Have e-mail evidence thrown out in 5 minutes.

 Verifiable record of delivery of e-mail as defined by the law (mail server)

 Verifiable record of content (message body/attachments) delivered (tamper detectable)

 Verifiable record of uniform time sent and received (3rd _{party time)}

 Self-authenticating

 Withstanding challenges around admission into evidence

 Capable of reconstructing an authentic electronic original

What is “Legal Proof”

…verifiable in a manner that constitutes “proof”

E-Signature / E-Records Cases

 Sims v. Stapleton Realty, Ltd., 2007 Wisc. App. LEXIS 741 (Aug. 23, 07) -an agreement originally in paper c-an be amended by a party using email.

 Kloian v. Domino’s Pizza , 733 N.W.2d 766 (Mich. App. 2006) - two parties can reach a legally binding agreement using email; if a law other than an electronic signature law requires extra steps for an electronic record or electronic signature to be effective (such as a certain placement of a

signature or method of delivery), that other law must also be complied with.

 Bell v. Hollywood Ent. Corp., 2006 Ohio App. LEXIS 3950 (2006) - plaintiff found to have consented to arbitration process by electronically signing web-based job application.

 Verizon Communications, Inc. v. Pizzirani, 2006 U.S. Dist. LEXIS 81688 (E.D. Pa. 2006) – defendant by clicking “I ACKNOWLEDGE” electronically

Recipient Knows that Sender Knows

(optional)

®

Evidentiary Record for Sender

Sender’s Computer

Optional Copy to Central Archive

Self-Authentication in Case Challenged

In case of a dispute,

Registered E-mail® receipts

can regenerate transmission data, delivery status as well as rpresent the original e-mail WITHOUT storing the original on its network.

Reconstruction of original e-mail & attachments



LEGAL PROOF – CORE



E-Security



E-Contracting



Collaboration

• Postmark / Time Stamp

• End-to-end Encryption • PDF-conversion • Metadata wash • Records classification SideNote™ • Adds Context

• Manage E-mail Overload • Reduce ―CC‖ Risk

Managing Electronic Business

Records

Transaction Record – Frankel Case

 Insurance broker sent e-mail to bind additional commercial property to existing policy.

 A subsequent claim was submitted to the insurance carrier, and the carrier denied having a record of the additional property on the policy.

 Fortunately, broker had a Registered Receipt e-mail proving the content of the e-mail sent to the carrier and precisely what time it was RECEIVED.

 Further, the Registered Receipt e-mail record was in a form that could be (a) easily retrieved, (b) verified as authentic, and (c) in a form that could re-construct a validated original.

Don’t Leave Record Retention to Chance

Source: 2006 E-Mail, IM & Blog Survey, American Management Association & The ePolicy Institute



66% lack e-mail retention policy.



34% can’t ID business-critical e-mail.

E-mail Record Retention = Business & Legal Challenge

regardless of industry, size, status as public or private entity.

Sending High-Value vs. Casual E-Mail

High Value = Retain in Verifiable Form

Casual = Short Term Retention

Over Time, the Parade of Issues

Enters Any Fortress of Technology

…denial by recipient… …changing technology… …system upgrades…

…mergers, acquisitions, divestitures…

…new outsider threats creating new insider threats…

…inadequate time to propagate changes across networks… …loss of metadata in retention systems…

Retain Only Business Records

 Electronic record management helps keep costs under control.

 Define & manage electronic business records.

 “Take out the casual non business emails”!

 RPost’s Registered E-mail® _{helps distinguish business-critical}

Best practices for e-mail

management

Registered E-mail: All-in-One Solution

Best Practice Tool: RPost’s Registered E-mail

_Service

ACCOUNTABILITY: Verifiable evidence of transaction:

Proof of delivery, content & time sent and received

RPost service includes on-demand options at one extra click:

EXTRA PRIVACY: Encrypt for extra privacy, end-to-end.

DATA LEAK PREVENTION: Clean hidden metadata, convert-to-PDF.

CLASSIFICATION: High-value or casual, by matter, code etc.

RECORDS: Bind e-mail agreements with e-signature & time stamp.

Feature Summary

Fully customizable pop-up

RPost - SideNote™

Customers include… U.S. Government Accountability Office (since 2003) Greenberg Traurig (since 2004): global law firm

Macquarie Bank (since 2005): global investment bank Louisiana State Supreme Court (since 2006)

NYSE Euronext (since 2007): global financial exchange U.N - World Intellectual Property Organization (since 2008)

Distributors: Pitney Bowes, BT Infonet, AT&T, Orange (FranceTel)… Integrated into: Google/Postini, Sendmail, OpenText, MX Logic…

Endorsed/sponsored: Major bars, Council Insurance Agents & Brokers

Safeguard for e-discovery rules: Endorsed by Risk & Insurance Mngmt Society

Awards: IBM Best Messaging & Collaboration Tool 2007 (top 3) eWeek top 10 disrupters for storage technologies 2007 CityTech top legal technology vendor to watch 2007

Who is RPost?

E-Mail Management and its

Relationship with E-Discovery