Rules of convergence

Companies must ensure that all business email and VoIP data is documented, searchable and retrievable

The days are long gone when a business only had one telecommunications provider to choose from and the only services available were voice calls and maybe fax. The tremendous changes in the way in which we communicate have spawned myriad suppliers and types of services aimed at businesses. Corporate communications is no longer a simple matter at all.

The increasing use of IP-based platforms means that the same systems are used to deliver voice and data services. This may seem attractive, but it also creates potential problems. In this article we pose some of the questions that our clients have asked us in relation to new technologies.

Do we have to keep copies of all the data flowing through our systems?

From a legal perspective, there is very little difference between electronic and paper data. Both may be used in legal actions. Whether a company has to keep copies will depend on the nature of the data.

Regrettably, disputes arise from time to time. If a business is involved in litigation, then certain documents may be critical to proving its case. The most obvious documents include contracts, meeting minutes and all forms of correspondence including both letters and emails. All these types of data may be disclosed in court.

The ease with which data is created, the familiar style of email and the disparate document production and management systems within organisations mean that it is ever more important to develop good records management processes. These in turn will increase business efficiency by ensuring the integrity of stored data and that the information stored is worth keeping, correctly documented, searchable and retrievable.

Will we be obliged to disclose the information we store?

In the UK, the courts require that parties to a dispute disclose to the other side all relevant documents regardless of whose case they support. The obligation to disclose extends only to those documents that can be located after a “reasonable search”.

However, what is “reasonable” in terms of the search, and the volume of documents disclosed, is judged on a case-by-case basis and is influenced by factors such as the complexity of the case, the value of the action and the relative financial strength of the parties to the dispute.

It is unlikely that all the information that is needed will be held in the same place in an organisation. It is therefore important that processes are established that ensure that relevant documents are retained and easily retrieved if required. We have advised on numerous cases where substantial volumes of electronic documents have had to be gone through to establish their importance and eligibility for disclosure.

So how long does a business need to retain its data?

There is no simple answer to this question. It will depend on the nature of the data. However, it is worth noting that it is possible for proceedings to commence up to 12 years after the events that led to the dispute occurred. Organisations therefore need to employ systems for retaining data that may be of use in litigation, and ensure that such systems maintain the integrity of the data.

There are two further points to note. First, personal data may only be retained for as long as is necessary for the purposes for which it is processed. This means that an organisation must ensure that it has appropriate measures in place to review and dispose of the personal data that it holds. Such data will include emails received by the organisation. It is also important to remember that individuals have the right to require organisations to disclose all the data they hold that pertains to them.

Second, we all have a tendency to treat email and instant messaging as more informal and relaxed media than letters. It is important that all employees realise that their emails may be used in court and that they are encouraged to compose them with the same care as formal correspondence.

But if organisations are tempted to treat IP-based communications as they would an email, they need to think again. Recording and storing telephone conversations is a hugely complex regulatory area, and needs careful vetting before companies consider it.

How can we ensure and control quality of the services received from our service providers?

With the creation of a vibrant communications market and the emergence of new technologies, there is ever greater need for businesses to find ways of monitoring and controlling the quality of the service that they receive from their service providers. Convergence often means that an organisation’s various means of communication run over the same systems. If a business is using voice over IP (VoIP) and its servers go down, then it may not only lose its email and document management systems, but its voice communications as well.