Once upon a time, the law firm’s records department was often tucked away “down in the basement,” and its mysterious functions were rarely valued — until a vital document had to be found.  Suddenly, that basement denizen, the records manager, was in the hot seat to find the document in a sea of e-mail, paper and electronic file stores.  This likely was the same records manager who might have spent years trying to implement some type of records process but gave up from the lack of attention to the issues.  But of course when a file was needed — and sooner or later, aren’t they always? — that’s when all the questions started! 

Now records practices have gone to the top of everyone’s to-do list in times of crisis, during an investigation or when something vital is “misplaced.”

Drowning in Documents
I used to think I was drowning in a sea of documents.  I still am, but now I am faced with a tidal wave that includes other media: e-mail, instant messages, voicemail, video clips, CDs, BlackBerry messages and more.

I know that most of what I receive helps me in my business; but if I’m so buried in incoming information, imagine what must be going on “down there” in the records department!

Through the Lens of a Senior Executive
Many senior staff members are facing the same issues.  Along with legislation that now holds them personally accountable for what they sign, they are also responsible for the behaviors of the people they manage and how those people manage documents.  A senior leader should look through two lenses in evaluating how vital information is managed.

Lens #1 — If Disaster Strikes
Do you have an efficient records practice that allows for efficiencies in business process?  Do you have the policies and practices that ensure your business would go on in the event of a catastrophic loss of facility?

Lens #2 — Litigation Risk
It is the job of litigators to try and make every shred of information discoverable.  It is up to you to have the policies and practices that limit this discovery, while allowing for sound business practices.

Policy Guide — More than a Credenza Decoration
Both litigation risk and good practice depend on the same set of good, solid implemented policies and a reinforcement of behaviors so that everyone actually complies with the policy.

Short List — Records Policy Check-Up

Look for Evidence. Do you have a written policy, and can you lay your hands on it immediately?  What do you do with your own e-mail messages?  Are they stored, backed up or destroyed against a sanctioned retention policy?  If there is no real evidence that your company has a policy in place and being practiced firmwide, it’s definitely time to involve the records department.

Visit the Records Center.  Does your records manager have a voice in the policy and procedure setting activities?  Look for synergy between the records and IT departments.  Together, they need to ensure all electronic and physical documents are treated the same way.

Self-Inspect.  Senior managers are the worst offenders of a records best practices.  Many legal rulings, for example, deem that backup tapes used only for disaster recovery are not discoverable; yet often it is discovered that senior managers frequently ask the IT department to recover e-mail messages they deleted accidentally — a practice that voids the argument that backup tapes are solely used for disaster recovery.

Get Help.  If you find too many issues to deal with internally or do not even have the time or resources, engage the experts for a consulting project.  This is the best first step to uncovering and correcting issues with a sound records policy.

A sound records retention policy includes the following:

Section I — Purpose
Describe why you have this policy — its importance and expected compliance.  Detail the consequences for inappropriate document handling.

Section II — Implementation
Detail the actual implementation plan and ongoing communication schedule.

Section III — Responsibility
Identify individuals who are responsible for ensuring compliance and describe their specific duties and empowerments

Section IV — Definition
Describe what makes a document a record and what formats are considered under the policy.

Section V — Vital Records
Define what constitutes a vital record, and how those records are stored and accessed in the event of a disaster.

Section VI — Retention
Outline how the retention schedule will be applied.  How documents of all types will be destroyed and what information regarding them will be kept, as well as details of the critical circumstances in which destruction is absolutely forbidden.

Section VII — Review Process
Explain how documents will be reviewed and who will sign off on their destruction.

Section VIII — Changes
Describe what happens to records when an employee leaves, when a department is folded or relocated and when any other change in operation occurs.  Changes in law or business needs may require additional record series or a modification in retention periods.

Section IX — Hold Procedures
Explain how a record hold is issued and implemented.  Who can issue a hold and who can lift it.

Section X — Confidentiality
Iterate how your confidential information is handled, copied, stored, retrieved and/or taken offsite — what can be published and what is for internal use only?  Make it clear that you expect all employees to treat confidential information as your competitive advantage.

Through the Lens of a Records Manager
Today’s records manager is on the forefront of new and innovative ways to capture and store documents in electronic formats that can be searched and retrieved, even if the original program was replaced long ago.

With the advent of multimedia and end-users having the ultimate electronic control of the desitny of their records, the job of the records manager has become more complex.

Here’s the short action list for the savvy records manager:

• Find Your Voice.  A records manager needs to ensure that he has a voice in the setting and implementation of records and document policies and practices.  Speak often to department heads, executives and the IT department on the current versus desired state of records management.
  
  Be the Expert.  Know the standard legislation and how it applies to your business.  Be able to articulate how you are compliant and what needs to be done to ensure that the needs of the organization are met. 
  
  Be a Great Partner.  Now that electronic media is prevalent in every company, a relationship with the IT department is critical to having an all-encompassing records policy.  IT controls the electronic storage of documents, e-mail messages and other media.  And since disk space is becoming ever more inexpensive, their preference will be to just keep everything forever or until they run out of drives — whichever comes first.  The other important partner is the legal department.  They know more than anyone the importance of retention policies and will give you the legal backup for your arguments
  
  View Records as a Marathon, Not a Sprint.  It might take years to get even mid-size firms’ records under control.  But having a written policy that is updated and communicated on a regular basis is a great start.  Stay informed by using the tools available in the industry and the network of records managers across the country.  ILTA has recently formed a Peer Group focused on the needs of records managers, and they offer great resources to you.  Don’t be discouraged by the lack of attention to this topic, stay strong and keep communicating the reasons for sound records-keeping policies you bring to a company’s stability and future.

--------------------------------------------------------------------------------
Document Retention

Due to the number of high profile cases that have spotlighted corporations that have either inadvertently or purposely violated the regulations regarding retention rules for documents, many corporations are looking for ways to not only understand the law but to live it. 

Business Continuity Plan
What would you do if your business burned to the ground?  Would your vital records be preserved so you can set up shop within a day and be productive?  The day after such an event all eyes turn to the records manager.  Everyone wants to know where all the documents are, and if there is a policy to protect them?  Many, many companies that have a disaster without a DR policy and practice go out of business.  Is your firm at risk?

Compliance
The day the receptionist calls to say an SEC officer wants to see you is definitely not the day to hunt down or bone up on your firm’s policy on document destruction. 

The information flow will only increase in the years to come.  Dealing with it now will enable you to compete in the global marketplace in the future. 

Be aware that you are not automatically protected or in compliance simply by having a policy or from purchasing records management software.  Established policy drives behavior; behavior drives compliance.

Instilling in your people a sense that the information flow is one of the company’s critical assets and protecting this vital information are steps that ensure  you are protected from possible harm.
--------------------------------------------------------------------------------E-Mail:  The Digital Smoking Gun

E-mail is no longer merely a messaging system — it is now in many ways the preferred communication vehicle because of its ability to allow a free exchange of ideas without being interrupted or challenged by the receiver.  Senders are free to agree, disagree or contractually obligate themselves by clicking OK to terms and conditions.

Even executives who have no idea how to produce a letter can send and respond via e-mail.  In the years to come, the next generation will use it as much if not more that the telephone.

To Delete or Not to Delete — That Is the Question
“Disk space is cheap.  Why not just keep everything forever?”

A countless number of IT professionals erroneously believe this — it is one of the most dangerous mindsets a company can tolerate.  Retaining every e-mail message effectively creates a “discovery jackpot” of all communication dating back as far as disk space allowed.
 
The way to avoid this potential hazard  is to categorize the e-mail messages at point of send or receipt, based on retention guidelines or get rid of it if it is deemed not a record.

If you have a large store of server-based e-mail stored, look for opportunities to sort the metadata for clues to their worthiness as records.
--------------------------------------------------------------------------------

About our author

Dr. Galina Datskovsky is the founder and CEO of MDY Advanced Technologies and is one of the creators of FileSurf®.  A nationally and internationally known expert in the field of document and records management, technology and dispensation, she has over 20 years of experience in computer sciences focusing in records management.  She can be reached at 201.475.4789.