Some still believe that deleting all e-mail and other messaging content is the least risky strategy for their organization, that it reduces risk by eliminating e-mails that might contain damaging content from senior executives, etc. The number of those who believe in a "purge everything" strategy is diminishing rapidly compared to even just a couple of years ago.

At the other end of the spectrum are those who believe in saving everything. While that mitigates some level of risk, it creates other risks, such as preserving smoking guns that you might not have been legally required to produce during e-discovery, for example.

The tricky part in all of this is knowing how much to preserve and how much effort to invest in making data accessible. For example, there are a number of vendors that will migrate content from backup tapes into an e-mail archiving system so that content that was relatively inaccessible before can now be easily searched during an e-discovery exercise. Proponents of migrating data from tape to an archiving system argue that it will make data searching dramatically easier, faster and cheaper to search and analyze during e-discovery. They’re absolutely right. However, there is another school of thought that believes that if you leave your data on backup tapes from which it’s difficult, slow and expensive to extract needed data, a judge might not require you to produce it.

Therein lies a difficult decision for corporate legal counsel, IT and others. Should you be proactive and go to the expense of migrating data to an archiving system so that you can avoid the expensive of tape-based discovery later on, or should you simply be reactive and hope you never have to do this? Further, the new amendments to the Federal Rules of Civil Procedure have still not been cited in a really large number of cases yet, so precedent doesn’t offer as much guidance as it will a couple of years from now.

Unfortunately, there is no clear-cut direction for decision makers, since there are advantages and disadvantages of both approaches.

Michael Osterman is principal analyst of Osterman Research.