Obama Administration and Email Privacy

Check out this article posted today on BoingBoing about Obama's policy on encrypted e-mails. The administration wants to keep back doors open for the government to get to encrypted messages to ensure that they have access to sensitive or potentially threatening information. Personally, I view this as an attack on privacy altogether. Individuals, employees, and especially companies have good reason to secure their communications (i.e. intellectual property) and any back doors can be exploited.

Ball Sees Decisions

Over on Craig Ball's EDD Update, he posts in reference to Zubulake that: 

Total reliance on an employee to search and select won't cut it in Judge Scheindlin's court. 

The decision puts a nail in the coffin of custodial-delegated holds and persuades me that, at least in the SDNY, no nabob should delegate preservation and search to minions, and certainly no lawyer should leave search to clients alone.  The opinion prompts further resignation to keep everything--especially all e-mail--and cease rotating tapes [s]hould someone so much as whisper the word "lawsuit."  

Mr. Ball is an e-Discovery thought leader and has practically written the book on the subject. In this case, I could not agree with him more and this relates directly to my last post. ESI must be managed centrally; relying on custodial-delegates is just not defensible AND is inefficient. There is no reason to keep high-cost, high-liability processes alive when there are known processes to replace them.

Government Retention Policies

In case you were ever wondering, here is what the government actually has to do in terms of retaining their electronic documents. Whether or not they actually have the ability to do this is another story. Source can be found here.

Document	Retention Period
(1) Records pertaining to Contract Disputes Act actions.	6 years and 3 months after final action or decision for files created prior to October 1, 1979. 1 year after final action or decision for files created on or after October 1, 1979.
(2) Contracts (and related records or documents, including successful proposals) exceeding the simplified acquisition threshold for other than construction.	6 years and 3 months after final payment.
(3) Contracts (and related records or documents, including successful proposals) at or below the simplified acquisition threshold for other than construction.	3 years after final payment.
(4) Construction contracts:
(i) Above $2,000.	6 years and 3 months after final payment.
(ii) $2,000 or less.	3 years after final payment.
(iii) Related records or documents, including successful proposals, except for contractor's payrolls (see (b)(4)(iv)).	Same as contract file.
(iv) Contractor's payrolls submitted in accordance with Department of Labor regulations, with related certifications, anti-kickback affidavits, and other related papers.	3 years after contract completion unless contract performance is the subject of an enforcement action on that date.
(5) Solicited and unsolicited unsuccessful offers, quotations, bids, and proposals:	.
(i) Relating to contracts above the simplified acquisition threshold.	If filed separately from contract file, until contract is completed. Otherwise, the same as related contract file.
(ii) Relating to contracts at or below the simplified acquisition threshold.	1 year after date of award or until final payment, whichever is later.
(6) Files for canceled solicitations.	5 years after cancellation.
(7) Other copies of procurement file records used by component elements of a contracting office for administrative purposes.	Upon termination or completion.
(8) Documents pertaining generally to the contractor as described at 4.801(c)(3).	Until superseded or obsolete.
(9) Data submitted to the Federal Procurement Data System (FPDS). Electronic data file maintained by fiscal year, containing unclassified records of all procurements other than simplified acquisitions, and information required under 4.603.	5 years after submittal to FPDS.
(10) Investigations, cases pending or in litigation (including protests), or similar matters.	Until final clearance or settlement, or, if related to a document identified in (b)(1) - (9), for the retention period specified for the related document, whichever is later.