It’s not difficult establishing the benefit of proper records management, when a company such as Microsoft Corp. spends an average of US$20 million for e-discovery per litigation, said a company executive.
“When someone says they can’t find the return on investment (on a records management process), I so disagree,” said Rachael Heade, Microsoft’s records management analysis manager, at a CA World 2007 panel discussion in Las Vegas, Nevada.
And there’s currently a backlog of cases to be handled, she added.
Records management and e-discovery are two sides of the same coin, believes Heade, because the success of a company’s e-discovery strategy relies on the strength of its records management foundation.
Microsoft has integrated records management into the annual job review of executive vice-presidents, directly tying their performance in this area to their bonus, said Heade.
Other staff can measure their own adherence to the records- management process by using self-assessment tools designed for various levels in the organization, she added.
It’s important staff have the right disposition to follow document-retention schedules, said Heade, therefore a retention schedule that is easy to understand and use is crucial. “If the user-interface doesn’t appeal to them, or if they don’t understand it, they will either not use it, or second guess themselves.”
Ease of use and minimal disruption to the business is paramount, “otherwise time, effort and money are wasted,” agrees James Daley, litigation attorney and founding member of Minneapolis, Minnesota-based Redgrave, Daley, Ragan & Wagner LLP.
A company should explore human resources and technologies that could make the process feasible for employees to implement, he suggested. Part of a successful implementation, said Heade, is the manner of training in that face-to-face training often trumps less interactive forms, such as online programs.
The retention process should also go beyond merely asking about the length of time an e-mail should be retained, said Heade. Rather, employees should consider the content in relation to the business and base a determination on that.
Organizations ought to think broadly and proactively about records management if they want to pave the way for a relatively stress-free e-discovery down the road, said Daley.
“You’ve got to treat the disease, not the symptom. E-discovery risk and sanctions are a symptom of unmanaged electronic information, particularly e-mail and office content,” said Daley.
If the company is large, it’s best to create a position, or even a multi-disciplined team, said Daley, which can allocate attention to the issue of records management and devise a process that’s systematic, uniform and repeatable.
Staff effort aside, successful records management “needs leadership and it needs to come top-down” to convey to the company the importance of being compliant, said Tim Carroll, litigation attorney and shareholder at Chicago, Illinois-based Vedder Price.
Carroll said retention schedules often have either too little or too much direction, such as multiple retention classes and retention periods, that employees are bound to find confusing.
He recalls when professional services firm Arthur Andersen LLP’s failure to produce records and its document shredding practices were brought into question by the courts in 1998. “[Following that,] it built a 650-page retention schedule that was followed by nobody – we found out years later.”
Companies with an international scope face an additional hurdle when creating retention schedules, said Heade. Microsoft’s approach to this is to have employees “retain things in compliance with where we do business.”
An international retention schedule applicable to all countries, for instance, would not have worked, she added.
E-discovery took the spotlight again, last year, when amendments to the U.S. Federal Rules of Civil Procedure required that parties in a legal dispute bring up and agree upon e-discovery issues at the start of legal proceedings.
Such issues include file format of documents, how documents are preserved and who has access to them. Canadian organizations that deal with the U.S. or Canadian-based offices of U.S. firms could be affected by the change in legislation.
Understanding records management and its relation to e-discovery is crucial for any organization given that any mishap in this area will be damaging to the public image. “Companies will be measured in this space, just as [it is] in the business space,” said Daley.
