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November 04, 2007

You can't spell "dream on" without ERM

I read an article this morning, linked from what I regard as the very best blog on e-discovery: K&L Gates' ediscoverylaw.com.  Entitled, "Creating a Strong Foundation for Your Company's Records Management Practices," the piece was one of those I dutifully follow to stay abreast of--dare I say it?--one of the most boring topics on the face of the planet.
* * * * Plink! [That was the sound of all future invitations to speak at ARMA meetings evaporating.]
Okay, maybe not boring to professional records managers, but when the audience is corporate counsel, you'd better have lots of ready-to-roll action items to keep eyelids from fluttering.  Now, it's easy to criticize and hard to construct, so I don't mean to take anything away from a well written, thoughtful article when I point to the challenges I see in implementing its advice.  But, I confess that the more I study electronic records management (ERM) and the more I preach its gospel in CLE, the louder the demon on my shoulder whispers, "Who are you kidding?  They're going to keep everything."

I wonder.  Will companies devote a minute to decide to retain or destroy an item that took 15 seconds to create and transmit?  Will that minute grow to an enterprise hour as each recipient burns a minute deciding if the item is a record, and whether there's a business purpose, regulatory schema or litigation hold requiring its retention?Packrat_4 

Will retention decisions be so idiosyncratic that one pack rat can eviscerate everyone else's effort? 

Will companies hire and empower the personnel, train and task the staff, acquire and implement the technology and change how they do business in the ways required to get ERM to really work, or will they continue to throw the dice, recognizing that when they come up snake eyes--lawsuit or government investigation--they'll spend much more on vendor and attorney fees, hoping cheaper storage and better search tools will ease the pain?

The jury is still out, but I'm certain that genuine ERM will require a change in corporate culture and, ultimately, decisions to be made about the character and lifespan of information at the time of its creation, rather than retrospectively.

Is ERM destined to be one of those laudable goals, like workplace diversity and gender compensation parity, that we talk about, sincerely value and make feints to realize, but always seem to linger just out of reach?

To underscore my point about the disconnection between aspirations, policies and practices, take a look at the following sample audit questions for employees taken verbatim from the cited article.  Ask yourself how you'd answer, then imagine how the last person you spoke with on the phone might respond.  Can you or they even say what constitutes a "record?"  Will we call "records about records" metarecords?  Just kill me now.

Sample Audit Questions for Employees

  • What records are created, received, or managed as part of your departmental duties?
  • Do you and your department maintain records in hard copy, electronically, or both?
  • Are you aware of your requirements generally for preserving corporate records?
  • Are you aware of the company’s record retention schedule and its broader records management policies and practices?
  • What policies do you and your department follow regarding records management?
  • Do you receive training for compliance with your company’s records management policy and schedule?
  • In practice, how do you and your department manage hard copy records and electronically stored information?
  • How do you and your department handle email and other electronic communications?
  • Have you or your department received and implemented record holds?
  • Have you or your co-workers received recognition for good records management practices?
  • How often does your department review the record retention schedule for accuracy?
  • How does your department ensure that it disposes of records that have reached the end of their retention period?
  • What records does your department keep regarding the process of disposing of records?
  • Are your company’s vital records appropriately designated?
  • Does your department have a records coordinator?

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Comments

A boring topic? I am shocked to hear such an eminent ediscovery expert as Craig Ball express such sentiments. An essential part of any company's e-discovery readiness strategy today has to be its records management policy and Electronic Content Management tools and practices. When I talk to clients about their e-discovery obligations, I always talk about records management practices. (Today, however, I speak of its as "information management policies", not "records retention policies" as used in the outdated vernacular.)

Even companies which are not e-discovery ready have to be concerned about their retention policies because those policies are squarely put to the test when issues of spoliation and the loss of relevant evidence come up (as they inevitably will in virtually every case).

Contrary to Mr. Ball, I think ECM and information management policies present a fascinating opportunity to be pro-active in responding to the e-discovery crisis.

Art Smith
Husch & Eppenberger LLC
St. Louis

If records about records are meta records, does that make paper printouts of electronic records quasi-records?

I call paper printouts of electronic records "dumbass." It's a technical term.

If you want to get truely technical, then you have to ask whether a record about a record is truely a record?

I knew I was missing the point when I recently tried to open a bank account in New Orleans and they wouldn't do so without a paper version of an electronic record showing proof of residence ... I should have just shouted "that's dumbass" and they would have been eager to do business with someone as techncially savvy as me. If only I were from Texas...I would have known that :(

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