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Legal Preservation of Information and Records

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In litigation and government investigations, there is the requirement on the part of those involved to retain all relevant information and records, and all other evidence.  Failure to carry out this responsibility can lead to criminal charges of obstruction of justice and spoliation.

Case law has made it clear that organizations cannot wait until they get formal notification of legal action.  The action of preserving evidence must begin when the organization can reasonably anticipate litigation or government investigation.  Clearly, this is an area that is often in dispute in legal matters.

The best means for organizations to meet this requirement is to gain centralized control of their information and records.  More and more of this evidence is created electronically and stored on system applications.  There are electronic records management, and email management, systems that can store this information under the organizations’ control.

Currently, the legal staff needs to identify those employees that might have relevant information and records on their C: drives, shared drives and removable storage devices.  There needs to be a continual communication effort to inform these employees that they are not to alter or destroy the relevant material.  As employees leave the organization, their information and records need to be retained and as new employees join the organization, they must be notified of the requirement to preserve the previous information.

For employees who leave the organization, we are seeing some organizations pulling the hard drives of the employees’ computers and retaining them for a period of time to ensure that files are not lost.

There are electronic records management systems that can centrally capture the files and emails created and received by employees.  Using a classification scheme to manage this content, retention periods and access controls can be applied to manage the information and records.  Metadata associated with the files and emails can be captured to allow this information to be managed and retrieved.  These files and emails can be accessed and preserved by the legal staff without interfering with the employees.

These systems also have legal hold functionality so that the status of designated records can be changed preventing their destruction until the legal matter has be resolved.  These systems can also prevent employees from altering existing information and records and utilize an audit trail to track all activity associated with the stored files and emails.

These central repositories can allow the legal staff to more easily, and cost-effectively, address their e-discovery and disclosure responsibilities.

These records management system applications will not be successful on their own.  Organizations need to have records management programs, consisting of organization-wide policies and procedures, staff and activities, in which these computer applications can be successfully utilized.

Preservation of information and records, and all other evidence, during legal action is a critical requirement for all organizations.

What is your experience in preserving evidence using an ERM solution?

Comments

Submitted by Michael Wildsmith August 18, 2010 - 9:33 AM

This is not a direct answer to your question Carl, but your post does raise some interesting questions. Working at a behavioral healthcare organization that has utilized an EMR for over 3 years now - we have experienced a lot of challenges with maintaining the integrity of our electronic records. In a paper chart environment, it is simple to make corrections, a line was drawn to strike out incorrect information and it was initialed. This was visible to everyone that viewed the paper chart. Now, utilizing an electronic system, a great many non-technical staff think that it is easier to edit information and not have those redacts as visible. Of course, the challenges only lie with those that have the security rights to edit information (aka, supervisors). Educating folks about electronic audit trails and that audit trails and meta data can & will be subpoenaed is very important. It may be arguable, but fear works as a good training tool!

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