November 14

Electronic Information Retention Policy

By Patrick Romero

The exponential growth in electronic information and the costs managing it, particularly in litigation, has spurred renewed interest in electronic records management and document retention programs.  A sound approach to developing an electronic records management and retention program would be to base it on a core principle that electronic records have value only to the extent that they can be efficiently identified and meet its legal responsibilities. 

Electronic records that cannot be readily identify or accessed, or that are kept after any legal and practical business requirement has expired, are of little to no value to an enterprise, particularly after the costs to store, retrieve and review are considered.  So, the twin goals of an electronic records management and retention program should be 1) to facilities the efficient search for and retrieval of electronic information and 2) to retain such electronic information so long as there is a legal or business need to keep it. 

Establish a Cross-Functional Project Team

The implementation and design of a team should bring all the major players of an organization from legal, information technology, business managers, and records retention specialists.  A cross-functional approach will ensure that all parties understand that it takes a team approach to comply with retention policies and ensure that all mandates are being met. 

Confirm the Legal and Business Implications for Retention

The team, usually headed by the legal department, must confirm that all federal and states law and regulations are being complied with.  Changes to the Federal Rules of Civil Procedure took effect on December 1st, 2006 and dramatically impact the way that litigants handle electronic documents during the discovery process.  Lawyers must be knowledgeable not only about the law but be mindful of the business implications for their retention policies. 

Recommend Process for Periodic Monitoring and Updating

The duty to preserve is tantamount in ediscovery.  The duty to preserve documents is triggered when a party reasonably anticipates that litigation will occur.  Lawyers will have to make independent judgments about when that occurs based on their previous retention policies and facts of a particular case.  It is imperative that there be an established process for periodic monitoring and updating to show the court, if required, the steps a particular organization has in place. 

Conclusion

The above is just a bones list of what electronic discovery laws require from counsel. The more planning and effort attorneys put into gather information about the matter, selecting the appropriate document review and ESI vendors, and training and managing the document reviewed, the better position counsel will be to meet productions deadlines, manage costs and avoid mistakes in the document review process.   

 

 

 

Patrick is a third-year law student at New York Law School, concentrating on privacy and internet law.  He is currently working at the New York City Department of Investigation in the General Counsels office and Digital Forensic Investigative Unit.  He is a Certified Information Privacy Professional and was selected as a 2008 International Association of Privacy Professional Scholarship Recipient.  Patrick is a decorated Iraq war veteran and served in the Army Reserves for eight years.  He hopes to use his education and experience to bridge the gap between technology, law and information security. 

 

Editor note: Patrick is currently managing Law School, an internship and prepping for his CISSP (hopefully within the newly formed SCC study group). He’s going to focus on those efforts for a while, and will hopefully make a return to our pages in the Spring. I really appreciate his efforts, insights and contributions- so thanks, Patrick. Now go kick some ass!

 


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