IM: To Preserve or Not to Preserve? That is the Question…
by Christina Cidade, Technical Sales Manager, Fios, Inc.
I have been hearing some interesting discussions recently regarding instant messaging (”IM”) and whether or not a corporation has an obligation to preserve these types of communications. So what are all the cool companies doing?
Once a corporation establishes that IM is appropriate and permissible for business purposes, they must determine whether (and/or how) they want control over IM. There are two different types of IM platforms — well, three if you count the financial industry, which is so cool it has its own toys made specifically for it - e.g., Bloomberg Messaging, Reuters Messaging and IMtrader. It even has its own rules regarding preservation of instant messages. Before we get into preservation issues, let’s distinguish the differences between the two types of IM platforms out there.
The first is Enterprise Instant Messaging (”EIM”). EIM software programs (e.g. IBM Lotus Sametime, Microsoft Office Communications Server, and Jabber XCP) allow individual (and group) conversations via the company’s centralized servers and therefore are able to automatically log IM conversations that the company can retain for an extended period (adhering to their retention policy).
The second type of IM is Consumer Instant Messaging (”CIM”) (e.g., AOL Instant Messenger, Yahoo!, Google Talk, etc.). CIM conversations are conducted when connected to the internet. When used in a business environment, the client application interacts with the company’s server. However, because IT does not have control over these applications, there is no logging feature that can be enabled on the server level. Therefore, unless a user saves an IM conversation, it virtually did not exist.
The approval of CIM across corporate networks creates risks and liabilities for companies who do not have control over the IM applications. Companies can implement specialized IM archiving and security products and services to mitigate these risks.
So to our question: to preserve IM or not? The answer is: It depends. How safe do you want to be when riding your bike? Pads and helmet or full speed downhill with no protection?
If no protection is your choice, courts are unlikely to find that IM must be preserved in ordinary course of business, and prior to litigation being anticipated. But, once litigation is reasonably anticipated, best practice is for litigants to preserve IM that it knows is likely to be requested during discovery and/or is the subject of a pending discovery request. What now?? Needless to say, not having control over IM in your corporation may leave a few bumps and bruises along your ride.
If seat-of-your-pants adventure is not your forte and you have EIM programs installed in your organization that adhere to a stringent IM policy, you’re well on your way to a smooth ride.
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