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Records Management 101

Records Management 101. Boston Association of Legal Administrators September 24, 2009 Dana C. Moore National Records Manager Foley & Lardner LLP. Learning Objectives.

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Records Management 101

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  1. Records Management 101 Boston Association of Legal Administrators September 24, 2009 Dana C. Moore National Records Manager Foley & Lardner LLP

  2. Learning Objectives The ability to identify, organize, maintain and access needed information, and properly dispose of the rest pays off in cost savings, efficiency, regulatory compliance including e-Discovery, and reduced litigation risk. After attending this session, you should be able to: • Identifythe key issues and best practices of managing records, regardless of media • Recognize the technology available to support a records management system, including bar-coding, scanning and software

  3. What We’ll Talk About Today What is Records Management? Core requirements and best practices for compliant records management Records Management program development Records Retention development

  4. Records Management… • An established information management discipline which: • Manages recorded information from cradle to grave • Enables: • Access to information • Effective cost management • Risk management

  5. Records Management… • Essential to: • Finding needed information within large stores of electronic data • Managing data capacity • Coping with ESI (Electronically Stored Information) • Locating • Reviewing • Preserving • Producing

  6. Records Management… Records Management Life Cycle

  7. Applying the Records Management Life Cycle 1. Create Records 2. Store Records 3. Use Records 4. Inactivate Records • Dispose • Of Records • Create • Name • Classify • File • (Physical • Or • Electronic • Repository) • Access • Reference • Rely On • Archive • (Offsite or Offline) • Set Retention • Period • Destroy • Return

  8. Sound Records Management Programs Address… What is a record? Public access v. confidentiality Volume Redundancy Consistency Legal issues

  9. What is a Record? Recorded information, regardless of media, that evidences an organization’s business decisions, or which supports future decision making

  10. Public Access vs. Confidentiality • Public Access • Finding the right information when you need it, to: • Be informed • Support past decisions • Make new decisions • Provide a basis for new records • Confidentiality • Protection of client information • Protection of Firm information • Expectations of privacy

  11. Volume • Too Much Information • Inhibits access • Compromises system performance • Escalates costs for production

  12. Redundancy • Every copy of a record must be produced • Which one is the official copy?

  13. Consistency A legally defensible records management program needs to be followed consistently

  14. Legal Issues • Legally mandated retention periods • Regulations • Statutes • Compliance with legal holds • Obstruction of justice • Spoliation • Compliance with federal rules of discovery • Consequences • Adverse instructions, sanctions, fines, fees, lost revenue, malpractice allegations

  15. Legal Issues continued • Ethical obligations of lawyers re representation records • Competent representation • Confidentiality • Duty to keep client informed • Duty to protect client property • Duty to return property at end of representation • Client ownership issues • Entire file states v. “End product” states

  16. Core Requirements and Best Practices for Compliant Records Management • Physical and electronic records are governed by the records management program • Executive-level program responsibility • Policies and procedures • Roles and responsibilities with proper delegation • Communication and training • Auditing to measure program compliance • Enforcement • Ongoing Program Improvement

  17. Executive Level Program Responsibility The General Counsel, COO, CFO, and/or Managing Partner must be the authority for the policy Compliance accountability must reside at the “C-level” or at the business head level The records manager must have company-wide authority and visibility

  18. Policies & Procedures • Definitions • What is a record? • Approved repositories • Client owned materials • Etc. • Process documentation • Records retention schedules

  19. Roles & Responsibilities • General Counsel; Risk Management Partner; Firm Management • Mandates the program • Records Manager • Will make policy, determine program outcomes • Designs and communicates processes to manage records in the organization • Has accountability for program compliance and success

  20. Roles & Responsibilities • Technology Department • Implements technology to support policy and business workflow • Records Custodian • Recipient/Owner

  21. Communication & Training • Not enough to just create policies & procedures! • Training • Records Management Policy • Basic responsibilities • Required for all lawyers, employees and contractors • Communications • Regular and planned

  22. Auditing & Compliance • Develop an approach to ensure the records management policy is followed • Provides a method of measuring & improving compliance • Incorporate with other process audits • Require annual compliance certification – and then spot check • Demonstrates enforcement

  23. Enforcement • Can non-compliance result in employee discipline? • Then that action must be taken • Policy should identify consequences • Determine why violations occur • Lack of awareness, confusion, willful act • All lawyers and staff should sign a certificate of understanding • Ensure that employees have the correct tools to comply

  24. Ongoing Program Improvement Measure progress Find bottlenecks Look for opportunities to reduce cost or improve cycle time Add technology where it makes sense

  25. Key Elements to Developing a Records Management Program Taxonomy and filing guidelines Repository concepts Technology Procedures and workflow Retention schedule development People and resources

  26. Taxonomy & Filing Guidelines • Taxonomy = subject categories • How records are classified • Filing guidelines • What types of records are properly filed within each category • Together, the taxonomy and filing guidelines are: • The “file plan” of the organization • The backbone of the records program

  27. Taxonomy Development • Review current lists • Survey users for common folder titles • Develop filing rules • Descriptions that identify applicable records for each category • Approaches • Minimal (representation, administrative, convenience) • Broad (100 or less) • Match DMS/RMS classification

  28. Example Taxonomy

  29. Unclassified File (no defined taxonomy)

  30. Classified FileTaxonomy in Use

  31. Repository Concepts • Where records are filed • Have as few as possible • Access based on client/matter ID • In general • Physical records in a file folder • Electronic records on a server • What about backup tapes? • Not a repository • Disaster recovery only

  32. Repository Concepts (continued) • Document Management System (“DMS”) • Electronic records, including email • Records Management System (“RMS”) • Index of folders for hard copy records • Archives • Local or shared drives • Backup systems • Mail System • Communication Tool • Not designed as a repository

  33. Technology: Official Repositories • Managing data capacity • DMS • RMS • Mail System • Archives • Litigation Support Databases

  34. Technology: DMS • Document Management System • Library structure • Matter centricity • Shared workspaces • Folder structure • Integration tools • Email • Security • Public vs. Private (Ethical Wall/Confidentiality) • Backup Schedules

  35. Technology: RMS • Records Management System • Primarily an index of physical records • Integration Tools to file email • Records declaration • Locks down the email • Drives records retention • Accessibility • How do your lawyers work? • Offline availability

  36. Technology – Mail System • Mail system management • Size limitations • Filing email – where? • De-duplication identification • Automatic profiling • Drag and drop • Send and file • Email retention (auto deletion) • Inbox • Sent Items • Deleted Items • Private folders • Backup Schedules

  37. Technology: Email Archives • Short or long term retention? • Organization • Software applications (storage) • DMS • Stubs vs. entire email • PST • Who has access? • Retention • Backup schedules

  38. Technology: Litigation Support Databases • Who owns the data? • How is data organized? • Location • Retention • Storage of media data provided on • Return to client at matter close • Backup schedule

  39. Procedures & Workflow • Folder Management • File Transfers & Attorney Mobility • Compliance issues • E-Discovery • Legal Holds • Ethical Walls • Records retention

  40. Folder management • Creation • Records staff • Secretary or practice group file clerk • Circulation • Tracking of file location • Storage (active/inactive) • Centralized file rooms • Practice group work rooms • Off-site storage facilities

  41. File Transfers: Incoming • Develop an intake workflow: • Inventory of physical records • Review and loading of electronic records • Confirming authorization to have information • New client/matter assignment • Every matter has a unique ID • Only accept work for active clients

  42. File Transfers: Outgoing • Client has the right to access the file • Written request from the client, not new counsel • Collecting physical and electronic records • Review for privilege and work product prior to release • Update systems • Accounting • Conflicts • Records • Docket

  43. Compliance Issues • Distinction between client and lawyer records obligations • E-Discovery • Federal Rules of Civil Procedure (“FRCP”) • Approach • Legal Holds

  44. Distinction Between Client and Lawyer Records Obligations • Client owns its records • Can make policy and business decisions without considering outside interests • Lawyer has obligations to the law firm AND the client • Law firm records management program must • Protect the firm and manage firm resources • Support the lawyer’s ethical obligations to clients

  45. E-Discovery and RIM Converge • Records Management and Retention • Compliance Activities • Discovery • Legal Holds

  46. E-Discovery and RIM Converge

  47. E-Discovery Approach • Only 8% of companies with records programs fully address ESI • “Innocently unorganized” doesn’t interest judges, they just want the evidence. (Morgan Stanley) • Litigation Readiness Plan – the interconnectivity of records, paper and electronic discovery and compliance processes. • Four key business benefits of being prepared: • Reducing risk associated with discovery • Shortening the time to produce data • Reducing costs of discovery • Minimizing business disruption

  48. The FRCP Amendments Implemented 12/01/2006 • Rule 16(b), 26(f), Form 35 • Early discussion of e-discovery issues • Rule 33(d) • Produce ESI in interrogatory response • Rule 34(a) • Definition of ESI (electronically stored information) • Rule 34(b) • Form of Production • Rule 26(a)(1)(B) • Location of all ESI • Rule 26(b)(2)(B) • Reasonably Accessible Information • Rule 26(b)(5)(B) • Belated assertion of Privilege • Rule 37(f) • Safe Harbor on Sanctions • Rule 45 • Subpoena on ESI

  49. Legal Holds • What is a Legal Hold? • The preservation of records that may be relevant to lawsuits, claims or investigations (pending or potential) against the firm or a client of the firm based on advice provided by the firm during representation

  50. Legal Holds • Duty to impose is triggered when the firm is “duly notified”: • Subpoena • Order to produce records • Conversation with a client • Lawyer believes there may be a malpractice claim • Disgruntled employee • Failure to comply can = • Spoliation • Obstruction of justice

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