One of the key features of Lync in this question is the "Conversation History" feature. This is a feature that, when activated (it is active by default, but can be deactivated by default in the setup), saves a copy of every IM in an Outlook folder. Most users will never notice this feature until it is pointed out or they notice a comment on an IM that is still open. Most users are also unaware that they can manually disable this feature. Once saved, the conversation can generally be deleted by the user, like any other Outlook communication. (Obviously, if you have enabled journalling, folder retention or a legal hold feature, the user is ordinarily only able to delete local copies.)

Nonetheless, if it exists, it is discoverable. The next question is determining whether or not the IM conversation is a record, per se. Our approach has been to put the responsibility of retention in the hands of the user, like most other unstructured information. The content of the communication will determine whether or not the communication is a record subject to retention. Clearly, if you work in a highly regulated environment, you may have little or no choice about retaining such communications.

The big question is whether or not this approach could constitute spoliation in litigation. I'd suggest that the potential for spoliation exists in virtually any records management program, absent a situation where every document and communication exchange is automagically retained and classified.

I don't believe that the correct question is about e-discovery; the correct question is about record-worthiness and retention of the Conversation History as a record. A discussion with your organization's attorneys should include discussion of the fact that in Lync, the game changer is that IM conversations can be automatically retained and stored in an easily accessible folder (in Outlook). Previous versions of Communicator allowed the user to retain a conversation by emailing it to the user's email account, or by copying and pasting into a document, but those methods required some effort by the user and few users go to that trouble. Conversation History is enabled by default or by a user making a simple check in a box. Since that functionality can be applied universally, an argument could certainly be made that more attention needs to be given to these communications being considered records. Likewise, a similar issue arises when unified communications
 (voicemail and facsimile delivery) are associated with Outlook. That is also a game-changer in how you treat those communications.


 
Patrick Cunningham, CRM, CIP, FAI
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