eDiscovery, Records Management and Records Retention

Records Management- Historical Perspective- Paper Historically- Paper was the “Corporate Memory” – a physical entity driven by the need to retain items coupled with the availability of space to store them Insured authenticity (originals) and access.

Yesterday 1982 IBM PC XT 5.25” diskettes 128K RAM 10Mb Hard Drive $5,545.00

Paperless Office

Records Management- Digital Perspective Records management is no longer visible. Digital information accounts for greater than 80% of all records. The logical location of these stored electronic records is controlled by computers. And, although, it may appear to be less costly to store digital information, it is important to develop meaningful retention policies.

Paperless Office

Consider... A 2006 Survey (ARMA AIMM) of 17,000 Businesses, Government agencies, & non-profits and associations presented the following results: While 87% of organizations had formal record management programs, over 32% of them were rated as ineffective. Over 43% of the record management programs did not address electronic records. 43% did not have a formal plan for discovery requests for records including litigation hold orders and 53% of them that did have litigation hold procedures did not include electronic records. 49% did not have a formal retention policy. Impact of Sarbanes-Oxley Act on record management program has increased 56% since 2003.

Records Retention Policy Generally understood to mean a set of official guidelines or rules governing storage and destruction of documents or ESI. Such policies typically define different types of records, how they are to be treated under the policies for retention, the schedule for certain records depending on legal requirements, practical business or technical requirements

Goals of a Sound Records Management Program Preservation Compliance with Regulations & Statutes. Mitigate Legal Risk. Reduce Litigation and Discovery Costs. Enhance Knowledge Management and Increase Productivity.

Litigation Holds Steps for Counsel Issue a “Litigation Hold” …when? Re-Issue the Litigation hold periodically Identify and communicate with key players in person…communicate clearly all requirements Identify and preserve all potentially responsive data

Preservation Anticipation of a Claim is all that’s required to trigger the duty to preserve potentially relevant evidence. Effective preservation (or destruction) is difficult. Other issues that must be addressed: –Hardware/software changes. –Employee turnover. –Reminders to organization. –Suspension of defragmentation, alteration, wiping etc. –Responsive vs. Reactive preservation.

Compliance and Risk Mitigation Sarbanes-Oxley. HIPAA. Gramm-Leach-Bliley The potential implications of Zubulake

Compliance with organizational policies, industry standards, local, & National Government laws and regulations dictate evolving retention periods for all types of Data including s.  Sarbanes-Oxley Act (SOX)  HIPAA  SEC 17 CFR Part 210  Florida Sunshine Law  NASD 2860/3010/3110  FDA  Electronic Communications and Transactions Act  National Labor Relations Act  Employee Retirement Security Act of 1974  Americans with Disabilities Act  OSHA  Medicare Conditions of Participation  Title VII of the Civil Rights Act of 1964 Over 6,000 State & Federal Compliancy Laws & Regulations!

Costs Understand the cost of preservation vs automatic destruction policies. Make sure that you establish methods to reinforce your policies and test their effectiveness. Anticipate litigation.

Knowledge Management From a legal perspective maintain your records so they can be updated and be useful for future needs or litigation.

Some of the questions you must answer for your client or company Has relevant data been properly preserved? What is the time, difficulty, costs to recover and retrieve relevant data? What business disruption will occur? How can relevant data be identified and irrelevant or privileged data be sorted out? How can this data be preserved to be used for potential future requests or other matters?

Changing Perspectives on Record Management Ignorance no longer a valid defense. retention policies are difficult or impossible to put in place. Sarbanes-Oxley requires compliance, yet is vague in many areas. Cost shifting strategies and burdensome arguments have a very low success rate.

Best Practices Proactively prepare for future litigation. Map critical electronic data, systems and backup media. Align Legal, IT and the Business. Disaster recovery strategies must no longer be the only purpose of record retention. Create evidence management/ preservation programs and publish, publish, publish

Example Create the Retention schedule/ guidelines and publish to a employee handbook Create a list of every department and division within the corporation and then within that department each major category of documents Create a complete numbering system; i.e LEG ; representing the Legal Department, the Litigation division, and expense records For LEG define the details for that record type electronic and paper life…i.e; online for 3 years, after that destroy, any events that could have an impact, etc. Create a records retention manager and hotline for monitoring and answering immediate questions.

Arthur Andersen v. United States Enron – Why was Arthur Andersen charged? Knowingly, intentionally and corruptly persuaded Enrons’ employees to withhold or destroy documents for use in a criminal regulatory investigation…

Rambus, Inc v. Infineon Technologies, Inc. Rambus v Infineon – Through depositions Infineon claimed Rambus’ doc retention policy resulted in the destruction of relevant docs to this patent litigation…but if Rambus had a documented retention policy…why couldn’t they destroy docs under that program? Rambus was going to start initiating these patent infringement litigations and therefore their retention policy was found to be not legitimate

The Paperless Office