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RECMGMT-L  November 2009, Week 5

RECMGMT-L November 2009, Week 5

Subject:

Re: Destruction Hold Process

From:

"Julie J. Colgan" <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Mon, 30 Nov 2009 10:13:05 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (94 lines)

Mary said ... "The suggested change is to eliminate the hold notification
process altogether."

Mary, I agree that this approach, especially as an alternative to an already
fully-formed legal hold notice process, is, as you put it, "out of the
mainstream".  To answer your ultimate question, no, I am not aware of anyone
who has done this.

As I read your message, I understand your end game for considering such a
change is to facilitate the ability and user willilngness to delete/destroy
electronic records and content that are NOT subject to a Hold.  Users are
currently hesitant, at best, to destroy electronic content that is not
subject to Legal Hold because they aren't sure what is/isn't applicable to
the Hold and it's too much trouble for them to determine what passes the
test, and so there is a general over-saving of non-record and/or non-Hold
content causing a cost increase in your storage.

Here's my thoughts:

I think the proposal is a bad idea.

You have a duty, during litigation and/or regulatory investigation, to
ensure all information relevant to the proceeding is isolated, preserved and
produced - and that includes newly generated information as well as existing
content.  If your company's electronic records program isn't entirely
centralized (meaning end users make some level of determination of record
status and have the ability to truly delete/destroy electronic content),
then it is my opinion (and I only work for lawyers, I, myself, am not one)
any judge would expect that the duty is clearly disseminated out to any/all
who have the ability to create and/or destroy material relevant to the
proceeding.  This has borne out across the case law.  Ask anyone who worked
for Anderson or Enron.

I recognize your arguments that 1) most proceedings result from past
corporate activity and so 2) there is less liklihood that new content would
be generated that is relevant to the proceedings.  Both logical, but during
litigation, logic sometimes doesn't get a seat at the table (no offense to
any lawyers or judges in Listland!).  Once you're in the midst of it, cost
takes a back seat and risk is the driver.  The court is going to want a show
of "good faith effort" to ensure those one or two or two hundred emails that
shouldn't have been sent with regard to the action being litigated but WERE
sent, are caught, isolated, preserved and produced.  If you stop notifying
relevant individuals, that is almost the complete opposite ... sometimes
referred to "negligence" but probably more rightly would be referred to as
"malicious" and lead to that "s" word ... "spoliation" and the other "s"
word ... "sanction".

If you are truly experiencing significant distress over the cost (financial
and operational) of retaining too much electronic content because end users
(who have the save/delete control in their little hands) are being overly
cautious, then I think the answer to your issue is to address that.  That is
the problem.  The Hold notices are not the problem.  It's a little like me
suggesting my husband put a bandaid on his bum knee - he needs
anti-inflammatory medication, not a band-aid.  You need to stop saving
everything, not stop notifying people of their duty to save a specific set
of content.

 To me, this is a RIM issue, regardless of litigation or investigation.  If
they are having trouble determining what is relevant to a Hold, are you sure
they are any better at determining what's a Record?

So what can you do?  I would suggest the first thing is to get cracking on a
really good training session.  Go out and work with the business units and
help them understand that both things are important - save what you must and
get rid of what you don't need - that both require their specific
attention.  Then ask a lot of questions, listen actively, and propose
specific behaviors based on the business unit's particular work, habits,
needs, etc. that will facilitate meeting your desired result.

I have no idea if you'll find this helpful, but I do hope I haven't made you
feel at all "electronically attacked".  :)   I am a fan of thinking outside
of the box, challenging the status quo, etc., but only taking divergent
action when it really makes the most sense (and I'm willing to accept the
risk of failure).  This just doesn't seem to me to be in the best interests
of your company since there are other ways to address the problem while
still adhering to current best practices.

What ever you decide, the best of luck to you!

Julie



-- 
Julie J. Colgan, CRM

[log in to unmask]
http://twitter.com/juliecolgan
http://www.linkedin.com/in/juliecolgan

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