You probably use some sort of email archiving system to control what you keep as legal records -- and for how long you keep them. A recent development in Oracle's case against Google has highlighted a key wrinkle in some archiving systems. It's important that you're aware of this issue.
You may have heard about the lawsuit; briefly, Oracle is suing Google over the use of Java in Android. This article isn't about the legal case, but about the archiving issue that the case has thrown up.
It appears that the particular software that Google uses keeps a copies of an email message as it's being drafted. Each time the draft message is saved -- either explicitly or automatically -- the archiving software would keep a copy of the draft.
So, not only would finished message get archived, but typically several additional copies of the message, in various states of completion. Any corporate lawyers reading this are now probably having kittens, wondering if their client's system does this. They should probably get on the phone with their client's IT departments as soon as possible.
You see, it's bad enough that a hostile party can apply for discovery and trawl through your email archive. Often, in an unguarded moment, a user might type something "unfortunate" in a draft, in the heat of the moment, which they later edit out before the message is sent. What if that unfortunate information is manna from Heaven for the opposing side?
In the Oracle vs. Google case, the issue is one of whether a particular message is protected by attorney-client privilege. According to Google, the sender didn't fill in the lawyer's email address until after he'd finished drafting the message. Oracle argues that the message isn't covered by attorney-client privilege until it's addressed to a lawyer. It says these intermediate drafts are therefore admissible as evidence; Google disagrees.
The bottom line: IT people should find out whether their archiving system keeps copies of drafts, and discuss the issue with their legal counsel.
Richi Jennings is an independent analyst, specializing in blogging, email, spam, security, and other technology topics. His writing has won American Society of Business Publication Editors and Jesse H. Neal awards. You can encircle him at +richi, follow him as@richi on Twitter, pretend to be his friend at Facebook.com/richij or just use boring old email: io@richij.com.
