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I am writing a post for a Legal Blog (it may turn into an article) about a recent employment decision. In a nutshell, the decision has the potential to significantly expand the information that an employer would have to preserve and produce in litigation. This risk, however, can be mitigated against with a records management policy that eliminates information no longer having business purpose. In this regard, I would like a few points as to records management and recommendations for such a policy to be used as quotes in the article (full credit - just no compensation). I would prefer responses from those in the Metro Detroit area. Thanks.
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HI Jason,
The decision to apply records management disciplines will definitely assist a company in culling down the total amount of ESI that they maintain which can be deemed discoverable. The whole purpose of a records mgmt program, along those lines, is really to apply destruction policies to various categories of records. So a project should actually be deemed a “records destruction strategy” vs. a “records management strategy” - destroying records really needs to come into it’s own as a category, that’s another topic.
In a nut shell, if you don’t need to keep it, get rid of it, it’s applying the basic premise that content contains “risk” and just as organizations mange financial risks the “risk” embedded in content also needs to be managed. Now, the key for applying records management for this purpose is that the “policies” that an organization uses needs to just “make sense” and they must be applied “uniformly”; and while there are always “exceptions”, you have to ensure that exceptions to a global policy (what I call an explicit policy) also “make sense”.
Organizations would be well served to have records policies retrospectively reviewed from several perspectives; a regulatory and compliance view – to ensure that they are not inadvertently destroying records that are regulated (HR and Tax records which apply to just about everyone for example); an internal audit perspective – to ensure that different groups within a large company do not have policies that conflict with each other, or inadvertently waive privilege because to many eyes are allowed to see particular records; an IT perspective to make sure that all of the sundry IT particulars are handled, such as secure logging, tamper proof media where needed, access security, etc. – and last but not least [and of the most importance] from the perspective of “opposing counsel” or the “presiding judge” – to ensure that there is “common sense” in those policies – do you want to be on the tail end of this questioning from a judge – “Jason based on these records policies it appears that your client is intentionally hiding information from the courts, public companies are obliged to be transparent so how is it that executives emails regarding M&A’s are retained for a period of 15 days while every other class of employee and record from SVP down to the janitor are maintained for a period of two years, regardless of their sub-category, what’s going on here, what is your client trying to hide? And by the way you realize that this entire case is about M&A irregularities’!!!” - So, apply things uniformly or be prepared in advance to answer the hypotheical question above.
So again, a firm "yes", applying retention and destruction policies makes sense as a means to reduce the total scope of discoverable information, you just to need to ensure “common sense” is the prevailing method so you do not get burned down-stream. Also, worthy of separate discussions are how categories (the critical decision criteria on what to keep and how long) gets applied to records, manually, automated, or somewhere in-between.
I am curious, on what decision you speak of that would impact what a company needs to preserve more?
Good Luck,
Peter
ps. I have some writings in the URL’s below that might provide more information on this topic.
Links:
* http://www.csi1000.com/archiveproject2_004.htm
* http://compliance.typepad.com/