You may or may not have been following Robert Cringely's writings on Burst v. Microsoft.  I find this case rather fascinating, as it seems to show what determined lawyers who have nothing to lose can do.
This week's Cringely column (via Dan Gillmor) details a major discovery in the case -- Microsoft has provided fairly inconsistent answers about their e-mail retention policy.

One huge issue in Burst v. Microsoft is missing e-mails that should have appeared in the discovery portion of the case, but didn't. Burst knows there are lost messages because many of them were to and from Burst, itself, so they have their copies. But not only are the known messages lost from Microsoft's e-mail archive, so are any messages on the same subject that may have been sent between the Microsoft people, themselves, and not shared with Burst -- messages that Burst only believes to exist, but it's a pretty fair assumption that some such mail did happen. I have written about this before, and it plays back to a haphazard corporate e-mail retention policy at Microsoft that seems to conveniently lose any damning evidence.
I read the first of the unsealed court documents.  It's interesting to think that there is a symbiosis between the "don't keep your e-mail" culture at MS that is documented in this brief and the limited archiving available and typical mailbox quotas of Microsoft Exchange.  A reporter I interviewed with in London years ago told me, "Don't forget, Microsoft designs software for Microsoft first.  If they can sell it, even better." That definitely just came back to me.
Anyway, the issue is a complicated one, and I'm sure many companies have many different approaches to e-mail that could be spun favorably or unfavorably.  But this case remains fascinating -- Burst's lawyers have certainly found some pretty sobering evidence, which could have implications far beyond this particular case.
This just in -- Ferris Research just sent an e-mail announcing a webinar this Wednesday covering "Email as Formal Business Records".  What excellent timing.

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