Let me start with the disclaimer that I don't personally use IM and only
know what I've read on this listserve about it, but I wanted to share
something I read just this morning on this subject.  Back on Feb. 18, Peter
K provided a link to Microsoft's comments concerning the proposed amendments
to the Federal Rules of Discovery
http://www.prestongates.com/Images/pubs/MicrosoftFRPCComments.pdf and a
diagram they provided
http://www.prestongates.com/Images/pubs/SampleNetworkDiagram.pdf.  This is
really interesting reading and provides much useful information about how
computer networks work - I highly recommend reading it (whether you agree
with Microsoft's take on the legal issues involved or not).

On pages 19-20 of their comments, they address the concept of Electronically
"Stored" Information, as opposed to "created" or "transmitted" information.
They point out that for many years we have been creating and transmitting a
lot of information via telephone, radio, and television, but that typically
that information is not recorded by the recipients.  While some activities
like stock brokers or 911 dispatchers routinely record and store such
electronic information, they do it based on law or business need, and are
the exception rather than the rule.

I quote the following from Microsoft's comments, as it bears on this
discussion.  It appears, from what Microsoft states, that whether IM is
recorded and therefore needs to be managed or not depends on a company
consciously choosing to record IM's.  The default would be that IM is more
like a transient conversation in the office than like an email.

"All this electronic information can easily be recorded and stored, but that
must remain the choice of the user.  Only when recorded and *stored* should
all this information be subject to discovery and the proper object of these
Rules.  Email is generally subject to these Rules because by default the
email software records and stores email until the user affirmatively chooses
to delete it.  Instant messaging is different because the leading software
that creates it, including Windows Messenger and MSN Messenger, are designed
by default not to record or store IM sessions.  Just like with a normal
phone call, when the IM session is over or the text window is closed the
messages are not stored.  They are automatically deleted, unless the user
affirmatively chooses to save them."

Greg Schildmeyer, CRM
Director of Records Management
Missouri Secretary of State's Office


-----Original Message-----
From: Tom Wilson [mailto:[log in to unmask]]
Sent: Thursday, February 24, 2005 1:25 PM

<Snip>While the employees were honest enough to admit that they use IM in
the same way as walking to the next cubicle, they unfortunately must
understand that the medium they are using, IM, is a live written (typed)
record, already recorded.  As such any policy to destroy it does not make it
less a record.<Snip>

-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Terry Schofield
Sent: Thursday, February 24, 2005 12:25 PM

<Snip> I then raised the issue that using IM for business purposes imposes a
responsibility on our company to properly manage the IM based on content in
accordance with our RM Policy and Record Retention Schedule.  Seems logical
to me, but the response I received was, "My team uses IM in business
conversation, just like we would if we got up and walked to the next
cubicle.  We don't have to record verbal conversations, so we should just
make a policy that states we don't keep any IM, just dispose of it all."

That's when the little hairs on the back of my neck started to rise, and I
felt a panic about to set in.  I don't think it is right to "just not keep
IM", especially since we have already adopted an E-mail Policy which
requires e-mails to be managed in accordance with the RM Policy and Record
Retention Schedule.
In my mind, this would create a conflict.  <Snip>

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