According to studies, the worldwide-installed base of e-mail clients will increase from about 1.9 billion "seats" in 2006, to nearly 3.6 billion "seats" in 2010. Microsoft Exchange currently holds a 52 percent market share (by revenue) of the corporate messaging software market and Outlook commands over 60 percent of the current installed e-mail client base, with an expected increase to 70 percent by 2009.

E-mail has become the predominant mechanism for written business communications, and Exchange and Outlook are the applications most companies use frequently to support those communications. Here are several tips regarding Outlook that are important not only for processing, reviewing, and producing Outlook content to opposing counsel, but also for the entire electronic discovery process, from planning to production.

Outlook considerations

Retention Policies: Before a case is even filed, how you manage Outlook archives can affect your ability to effectively respond to discovery requests. Some organizations have implemented retention policies that incorporate the AutoArchive function of Outlook to automatically archive messages older than a specified time period (e.g., 60 or 90 days). While this approach might reduce the e-mail collection size in Exchange databases (.EDB) on the mail server or in offline storage (.OST) mailboxes, custodians often migrate messages to personal storage (.PST) files or individual message (.MSG) files before they're automatically archived. As a result, the policy may only cause Outlook files to become more de-centralized, complicating the collection process. A better solution might be to evaluate and implement an e-mail archiving solution that can support individual custodians' archive retrieval needs as well as consolidating and streamlining collection for discovery. Outlook 2007 supports saving and archiving of e-mail messages in Windows SharePoint document libraries, optimizing those messages for long-term archival and compliance purposes.

Meet and Confer: When a case is filed, you should address several considerations for the "meet and confer" with opposing counsel. For example, opposing counsel may request production of Outlook files in their native format, perhaps to ensure that produced files have not been altered. However, because responsive messages are generally stored in a container file (EDB, OST or PST) with all of the other non-responsive messages for one or more custodians, it's impossible to produce only responsive messages without repackaging those messages into a new container (typically, a PST file). This new container file will have a "create date" later than the relevant time period, so it's important to establish an understanding with opposing counsel up front regarding production format to avoid spoliation claims. If you're producing Outlook messages natively, you must address how redactions of privileged information will be handled. Typically, you would convert these to images and redact them since it's not practical to redact the native Outlook message.

It's also important to establish an understanding with opposing counsel on how both sides will address and handle various processing issues (mentioned below) via exception reports or other mechanisms to keep efforts to address these anomalies to a minimum. Raising these issues at the beginning of the process will save considerable effort and cost downstream.