www.frostbrowntodd.com grant s. cowan information management & ediscovery practice group

www.frostbrowntodd.com

Grant S. Cowan

Information Management &

eDiscovery Practice Group

Information Management &

eDiscovery Practice Group


Grant S. Cowan

IMeD Practice GroupIMeD Practice Group

FBT IMeD Practice Group

Cross-Departmental 15 Lawyers IT personnel Counsel clients regarding various records

management issues, including drafting and reviewing of records retention policies

Assist clients with electronic discovery issues, including document review projects and responding to document requests and subpoenas


Grant S. Cowan


ARTHUR ANDERSEN DECISION

Destroying records is not a crime “‘Document retention policies,’ which are

created to keep certain information from getting into the hands of others, including the Government, are common in business.”


Grant S. Cowan


ARTHUR ANDERSEN DECISION

“It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.”


Grant S. Cowan


2005 Electronic Records Management Survey

Surveyed over 2000 records management personnel 87% said their organization had a formal records management program 32% evaluated their program as Marginal (11%) or Fair (21%) 29% follow their retention schedule either Not Regularly (18%) or When

Time Permits (11%) 43% do not include electronic records in their retention schedules 49% do not have a formal e-mail retention policy 43% do not have a formal system in place for litigation hold orders 53% do not include electronic records in their organization’s litigation

hold


Grant S. Cowan


Why Do You Need A Records Management Program (Or Why Do You Need To Follow

Your Records Management Program)

Improved Operational Efficiency RIM Program documents the Company’s records—records it

creates, receives, and uses RIM Program categorizes and indexes the Company’s

records RIM Program allows the Company to readily access those

documents


Grant S. Cowan


Why Do You Need A Records Management Program

Consistency in Records Disposition Companies often have different rules and

procedures for records management across business units

RIM Program ensures records are managed in a systematic manner that conforms to the Company’s records information management policy.


Grant S. Cowan



Consistency in Records Disposition A valid RIM Program reduces the chances

for inconsistent, reckless, or inappropriate or accidental destruction of information.


Grant S. Cowan



Compliance with Legal/Regulatory Requirements

Most organizations are subject to some statutory requirements governing the creation, maintenance, and retention of records.

RIM Program identifies the legal/regulatory requirements and specifies the period of time that records must be maintained.


Grant S. Cowan



Compliance with Legal/Regulatory Requirements Compliance with the RIM Program allows the Company to

demonstrate that it manages records in the regular course of business and in accordance with a sound business policy and applicable laws and regulations.

In other words, records were destroyed in accordance with a valid document retention policy


Grant S. Cowan



Protection During Litigation/Investigation Routine records disposal must cease when it is reasonably

foreseeable that a formal legal proceeding (litigation or investigation) is pending or may be commenced.

RIM Program ensures that records are properly handled in anticipation of and during litigation or government investigation.


Grant S. Cowan


OLD BANC ONE SHAREHOLDER LITIGATION

Plaintiff requested various documents Bank One unable to produce many of the documents Bank One did not have a “comprehensive document retention policy” in

place Had an “incomplete” and “non-final” policy in place Policy had not been widely disseminated to employees nor did the

company take steps to ensure that employees read or followed the policy Took Bank One 10 months to tailor a preservation policy for the litigation

Sanction: Bank One not permitted to cross-examine Plaintiff’s financial expert; jury given an instruction as to why Bank One not permitted to cross-examine the expert


Grant S. Cowan



Reduced Space Requirements RIM Program eliminates storage of duplicate records—only

the “official copy” of a record is maintained RIM Program provides for the systematic appraisal and

disposition of the official copy and any other copies of records thereby reducing storage space requirements


Grant S. Cowan



Cost Containment RIM program contains costs by

Minimizing the need to obtain additional filing equipment and/or storage space for paper/microform and tape-based information

Minimizing the need to obtain additional hard drives/diskettes/CDs for electronic information

Ensuring that prime office space is not used for storing inactive records

Controlling the retention and maintenance of duplicate records; and

Controlling the document population, of both electronic and physical files, that might be subject to costly document review and production in legal proceedings.


Grant S. Cowan

Questions

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