Transcript CCTI

eDiscovery,
Records Management
and
Records Retention
Records ManagementHistorical 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 email 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 email 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
<Insert
Slide retention
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Government laws and regulations
dictate evolving
periods for all
types of Data including Emails.
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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
Over 6,000
OSHA
Medicare Conditions of Participation
Title VII of the Civil Rights Act of 1964
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.
 e-Mail 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-0110-020;
representing the Legal Department, the Litigation division,
and expense records
 For LEG-0110-020 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