The last several postings have discussed “going paperless” and the related benefits. The subtext of the “going paperless” conversation is records management – or what ARMA (Association of Records Managers & Administrators http://www.arma.org ) calls an Information Retention and Disposition Program.
In my experience a surprising number of firms (law firms / other professional services firms / public and private companies) don’t have a records policy and an even more surprising number – have a policy which they don’t enforce. Having a policy means committing to internal audits and employee education to assure compliance with your records program. To do otherwise is perhaps worse than no policy at all and can expose the firm to a variety of risks (search here for references https://ediscovery.klgates.com/ )
If you have a records policy which is well implemented then skip this blog posting – but if you are operating without a policy or are simply using the “keep it all” method then keep reading.
WHAT IS A RECORD:
The definition of a record provided by ARMA is the following:
Record: Recorded information, regardless of medium or characteristics, made or received by an organization that is evidence of its operations, and has value requiring its retention for a specific period of time. Recorded information in any format that is created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of
business.
In short – a record is every kind of information created in or moving through your organization.
WHAT IS A RECORDS MANAGEMENT PROGRAM?
A records management program – or an INFORMATION RETENTION AND DISPOSITION PROGRAM – is an organization-wide framework which defines the scope and procedures for retaining and ultimately disposing of information in your organization. A retention schedule is merely one part of the program, but no more important than user-education, self-auditing, defined procedures for record destruction, or procedures for implementing legal holds. Suffice to say, creating and then operating a records program is complex and can seem daunting at the outset.
Some of the key elements of a records program are:
1) Records Program Committee. This committee will provide vital input from key areas of the organization like information systems, legal, and operating departments.
2) Records Retention Schedule. This will be a compilation of the records kept by the organization along with details about the records lifecycle (active, inactive, destruction).
3) Litigation Hold procedures. How a litigation hold is instigated, implemented, and audited.
4) Destruction procedures. How records destruction is authorized and how the process is documented.
5) Employee training. This is a vital link in defending your records program and assuring it operates efficiently.
6) Compliance Auditing. This step helps assure your records program is managed in a way that identifies and corrects errors in the operation of the program.
KEEP EVERYTHING? IT’S SURE EASIER!
First let me deflate the notion that it is sufficient to simply “keep everything”. Here’s why this isn’t:
1) One of the key objectives of a records program is efficiency achieved through smaller records inventories and systematic management of records. If you assume that your business is an on-going concern then you will have an ever-increasing inventory of records to store and access. The haystacks hiding the needles just get bigger and bigger.
Whether paper or electronic – this method of records management will eventually become less and less efficient and will ultimately overwhelm itself – the question is not if, but when.
2) If you use the “keep everything” method then you must truly “keep everything”. Selective or arbitrary deletion of records leaves you open to charges of bad behavior or worse. There are innumerable examples in the annals of e-discovery documenting cases lost and sanctions lodged because of arbitrary and capricious destruction of records.
3) If your business is potentially subject to audit or lawsuit, you have created a Pandora’s Box of record-finding which will be larger and more expensive than necessary. You can always argue undue burden and excessive cost but a records policy gives you a legitimate way to preemptively dispose of records that no longer have any operational, regulatory, or legal value thus limiting the scope of audits or discovery related to a legal action.
MYTHICAL CONVERSATION:
Plaintiff’s Attorney to CEO: “Hi Jerry, its Tom. We just finished the 30(b)6 deposition. Guess what? “
CEO “Give me some good news Tom”
Plaintiff’s Attorney to CEO: “The good news is… they don’t have a records policy. They just keep everything. That’s what we’ll ask for in discovery.”
CEO “They’ll just claim the requests are over-broad”.
Plaintiff’s Attorney to CEO: “Yes, and they’ll have to prove it. It will take them tons of extra time and effort”.
INFORMATION RETENTION AND DISPOSITION PROGRAM
If an Information Retention and Disposition Program (Records Program) is so important to the efficient and effective management of records, then why do many organizations choose to operate without one? They’re hard to implement – here’s why:
1) A Records Program is by definition very comprehensive and requires thorough research and careful decision-making. “Retention Management for Records and Information” is an ARMA publication which thoroughly outlines the scope of a Records Program and how to organize and execute the effort. It is an excellent place to start and includes an excellent bibliography.
2) There is no “one-size-fits-all” Records Program. You can refer to examples provided by others in your industry – and some of the reference documents listed below will provide this – but every aspect of a Records Program must be evaluated in the context of your business.
If you’re in the legal industry, then someone in your firm should be a member if ILTA – or consider joining. The membership published a “MODEL PROPOSED RECORDS RETENTION POLICY” which is a useful starting point of a Records Policy.
And even if you’re a member of ILTA – take a look at this sample policy published by the ABA
3) Senior Management Sponsorship. Implementing an Information Retention and Disposition Program requires sponsorship from the organization’s most senior management. This level of sponsorship helps reinforce the importance of the initiative. It also helps demonstrate (and sometimes prove) that the organization is serious about a records program.
4) The “C” Word To assure that your Records Policy truly fits your organization and offers a defensible framework means assembling a committee of stakeholders. I know that for some organizations, this is the death knell of many projects – but the input is vital and consensus is even more important. This is where senior management sponsorship can be very helpful.
THE TIME IS NOW (Not when you get the audit notice)
I hope I’ve convinced you that a records management policy is vital to your organizational health. Perhaps I’ve also convinced you that it’s a big project – and like all big projects you’ve got to start somewhere. Since you’re probably the person who will be project leader – start with research. Understand the scope of the effort, and then get your Managing Partner, Named Partner, CEO, CFO, and / or CIO on board. Develop the committee – and convene your first meeting. You may be encouraged by the support and interest in finally getting this corner of the house in order.
RESOURCES:
The Sedona Conference Working Group Series: THE SEDONA GUIDELINES: Best Practice Guidelines &Commentary forManaging Information& Records in theElectronic Age November 2007 http://www.thesedonaconference.org/dltForm?did=Guidelines.pdf (name and email address required)
ARMA International: Retention Management for Records & Information ISBN: 1-931786-27-5 (PDF version) http://www.arma.org/r2/standards-amp-best-practices/project-procedures/retention-management-for-records-and-information
Creating a Record Retention & Destruction Policy: A CNA Professional Counsel Guide for Lawyers and Law Firms http://www.jamisongroup.com/downloads/IP_recordretention.pdf
American Bar Association: Sample Retention Policy http://apps.americanbar.org/lpm/lpt/articles/sampledocretentionpolicy.pdf
Blog posting at AIIM – Harjit Singh – January 16th 2011 http://www.aiim.org/community/blogs/community/Formulating-A-Document-Retention-Policy
Disclaimer: This information contained in the posts at www.Lawyerpdf.com are intended to be informational only and should not be construed as legal advice. This information is commentary and is intended as a starting point for your own research into the issued discussed here.
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