Transcript Click here - Frost Brown Todd

Information
Management &
eDiscovery Practice
Group
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
FBT IMeD Practice Group
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Cross-Departmental
15 Lawyers
IT personnel
Counsel clients regarding various records
management issues, including drafting and reviewing
of records retention policies
Assist clients with electronic discovery issues,
including document review projects and responding to
document requests and subpoenas
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
ARTHUR ANDERSEN DECISION
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Destroying records is not a crime
“‘Document retention policies,’ which are
created to keep certain information from
getting into the hands of others, including the
Government, are common in business.”
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
ARTHUR ANDERSEN DECISION
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“It is, of course, not wrongful for a manager
to instruct his employees to comply with a
valid document retention policy under
ordinary circumstances.”
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
2005 Electronic Records Management Survey
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Surveyed over 2000 records management personnel
87% said their organization had a formal records management program
32% evaluated their program as Marginal (11%) or Fair (21%)
29% follow their retention schedule either Not Regularly (18%) or When
Time Permits (11%)
43% do not include electronic records in their retention schedules
49% do not have a formal e-mail retention policy
43% do not have a formal system in place for litigation hold orders
53% do not include electronic records in their organization’s litigation
hold
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records Management
Program (Or Why Do You Need To Follow
Your Records Management Program)
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Improved Operational Efficiency
 RIM Program documents the Company’s records—records it
creates, receives, and uses
 RIM Program categorizes and indexes the Company’s
records
 RIM Program allows the Company to readily access those
documents
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Consistency in Records Disposition
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Companies often have different rules and
procedures for records management across
business units
RIM Program ensures records are managed in a
systematic manner that conforms to the
Company’s records information management
policy.
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Consistency in Records Disposition
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A valid RIM Program reduces the chances
for inconsistent, reckless, or inappropriate
or accidental destruction of information.
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Compliance with Legal/Regulatory
Requirements
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Most organizations are subject to some statutory
requirements governing the creation, maintenance, and
retention of records.
RIM Program identifies the legal/regulatory requirements and
specifies the period of time that records must be maintained.
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Compliance with Legal/Regulatory Requirements
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Compliance with the RIM Program allows the Company to
demonstrate that it manages records in the regular course of
business and in accordance with a sound business policy and
applicable laws and regulations.
In other words, records were destroyed in accordance with a valid
document retention policy
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Protection During Litigation/Investigation
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Routine records disposal must cease when it is reasonably
foreseeable that a formal legal proceeding (litigation or
investigation) is pending or may be commenced.
RIM Program ensures that records are properly handled in
anticipation of and during litigation or government
investigation.
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
OLD BANC ONE SHAREHOLDER LITIGATION
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Plaintiff requested various documents
Bank One unable to produce many of the documents
Bank One did not have a “comprehensive document retention policy” in
place
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Had an “incomplete” and “non-final” policy in place
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Policy had not been widely disseminated to employees nor did the
company take steps to ensure that employees read or followed the policy
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Took Bank One 10 months to tailor a preservation policy for the litigation
Sanction: Bank One not permitted to cross-examine Plaintiff’s financial
expert; jury given an instruction as to why Bank One not permitted to crossexamine the expert
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Reduced Space Requirements
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RIM Program eliminates storage of duplicate records—only
the “official copy” of a record is maintained
RIM Program provides for the systematic appraisal and
disposition of the official copy and any other copies of
records thereby reducing storage space requirements
Grant S. Cowan
www.frostbrowntodd.com
IMeD Practice Group
Why Do You Need A Records
Management Program
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Cost Containment
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RIM program contains costs by
 Minimizing the need to obtain additional filing equipment and/or
storage space for paper/microform and tape-based information
 Minimizing the need to obtain additional hard
drives/diskettes/CDs for electronic information
 Ensuring that prime office space is not used for storing inactive
records
 Controlling the retention and maintenance of duplicate records;
and
 Controlling the document population, of both electronic and
physical files, that might be subject to costly document review
and production in legal proceedings.
Grant S. Cowan
www.frostbrowntodd.com
Questions
Grant S. Cowan
www.frostbrowntodd.com