Electronic Discovery Education Blog
Records Management is now Information Management in the EDRM Model.
The first step of the EDRM model was called Records Management, at some stage it changed to Information Management. It now recognizes that every organization manages information, but not every organization manages their information as records. The whole environment of litigation and e-discovery elevates records management to a level where it has to become a corporate competency.
We all know or should know that more than 95% of the records being created today are electronic. Along with the overwhelming growth of electronic messages –such as e-mail and instant messaging - the management of electronic records has become an extremely critical business issue. How that information is managed has significant business, legal, and technology ramifications. Ultimately, it doesn't matter what medium is used to create, deliver, or store information when determining if content is a record and should be managed accordingly. This article will describe in more detail Information management. From an electronic discovery point of view those for those in litigation support, paralegals at firms as well as those in sales and technical engineers at service providers. The need to understand this important first step is important in having a grasp on the EDRM model. Before going further let us stop and go over some key terms in relation to information management.
Litigation Hold
A litigation hold is a directive to your client and others to preserve electronic data or other information pertaining to the litigation. A litigation hold directive should include information regarding the summary and basic nature of the case, the relevant parties and the claims. The directive should include instructions to halt any paper or electronic information destruction policies. Also, retention schedules should be reviewed and revised to ensure preservation of both electronic and hardcopy information. The directive should advise parties as to privilege protection that is given to ESI involving the attorney-client relationship as well as work product.
Preservation
Oftentimes, attorneys are under the impression that the duty to preserve arises when they receive a preservation letter from the opposing party, a preservation order from the court or a discovery request from the opposing party. This is simply not the case. As noted by FED. R. CIV. P. 37, Advisory Committee Note of 2006, "[a] preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case."
Depending on the common law in your jurisdiction, the obligation to preserve evidence arises when litigation is:
"Reasonably anticipated"
"Pending, imminent, reasonably foreseeable"
To minimize the risks of the destruction of evidence and avoid sanctions, electronic evidence should be preserved as soon as a party is put on "notice" that potential litigation may arise.
RETENTION POLICY
A document-retention policy is an important tool an organization uses to address the creation, retention and disposition of corporate records. Records as information created, received and maintained as evidence by an organization or person in the transaction of business, or in the pursuance of legal obligations -- can be in any media form, including paper, e-mail, electronic files, BlackBerry devices, laptops, voicemail…etc. However, not all items created in these media are records; for example, personal e-mail would not fall into this category.
Recent legislation, particularly the Sarbanes-Oxley Act, and an increasing focus on corporate misconduct make it important that a company create and adhere to a formal document-retention policy. Again from a litigation support point of view it is important to fully understand why a document retention policy is of the utmost importance for any organization.
Records that are known to be relevant to a pending or impending litigation matter should not be destroyed. Destruction of such documents could lead to causes of action for spoliation, court sanctions, or default judgments.
A document-retention policy will of course be unique to an organization. An effective policy will describe the scope of the policy such as are individual departments affected differently, or does the policy apply to the organization as a whole? Who are the responsible individuals, exceptions to the policy, retention periods, retention methodologies (e.g., storage, format and location), how to handle confidential materials and communications and privacy considerations for employees.
Despite these challenges, it's crucial that a company be able to manage its e-mail as effectively as it does its paper records and that e-mail is a significant part of any records-management program. A number of vendors have created e-mail filtering and archiving programs to address this need. This will be examined more in the next article.
There are quite a few parallels between the activities required to achieve e-discovery preparedness and the implementation of a records management system. Both require an organization to have a handle of what information is produced and in what systems and also where it is stored; in the e-discovery process to create a data map for the purpose of assisting in the identification of information relevant to a case. It is important that an organization create a data map that involves their records manager in the process right from the beginning. It is also important for those in IT to have a grasp on all possible locations where data is stored.
Courts and regulators expect large companies to respond quickly and fully to broad electronic discovery requests. Failure to comply can result in negative court rulings such as civil, or even criminal sanctions. The past few years have seen an increase in multi-million dollar penalties imposed against companies for failing to properly maintain or produce electronic information.
The experienced litigators at law firms can help their clients in any litigation or investigation where electronic information is involved. So they need to have a grasp on identifying the client’s legal obligations to preserve and produce such electronic information. It is important for paralegals and those in litigation support to understand where this knowledge would be helpful:
- Drafting and opposing electronic information and document requests
- Preparing and tracking legal hold notices
- Developing plans for locating, reviewing and producing requested ESI
- Designing methodologies and search terms that allow for the faster, more efficient searching of documents and electronic storage media
- Selecting which production demands to challenge, which documents to produce and the format in which to produce the requested materials
- Of course to have the ability to defend the client’s electronic discovery and records management methodologies.
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The main goal in designing or enhancing electronic discovery and records management programs is to achieve reasonable and defensible approaches to maintaining and deleting electronic information and to respond to discovery requests.
For companies prioritizing automated legal-hold workflows as a critical requirement, having policies and best practices for enforcing, managing and tracking legal holds by application and content is the place to start. Initial efforts should focus on the most popular target sources for electronic discovery in litigations, investigations and audits.
The records management and retention component of electronic discovery is concerned with which electronic documents are retained, for how long, and in what form. Records management is an important part of the electronic discovery and is unique to each company based on the type of materials processed, the current methods of preservation and the regulatory and legal requirements for that particular company. The foundation for successful records and information management is a program that puts the efficient functioning of business operations first, while also ensuring compliance with records retention obligations and positioning a company to respond to inevitable requests for electronic discovery.
Next Up: ECM and the SharePoint riddle.
John Randall
President
Randall Consulting
