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What is a Record? The Old Rules No longer Apply

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For many years Records Management has been built around records retention schedules, File Plans, Records Declaration, and so on.  Defining what is a record, what type of record it is, how long to keep it, cutoff rules, and how to declare a record has kept us up at night and consumed our days.

In this model many documents or messages are considered "non-records."  These non-records consist of personal/non-business items, copies, drafts, working versions, and so on.  This model includes a Records Declaration process that turns a document from a working version to the official record copy, and locks that final copy down so that it cannot be further edited and so that access is tightly controlled.  At this time the clock starts on how long you keep it before it is destroyed.

This model includes careful study and implementation of records retention schedules, combined with processes around implementation within business processes.  It is often unwieldy and cumbersome, but that's what we get paid the big bucks for ;-)

Many records management software applications include automation of these processes, including workflow to modify a document's status when a business process shows that it is a final version.  For example, a contract's retention clock begins when the contract has been completed, and the contracts business process includes a trigger that is started when the process reaches that state.  Reducing the manual records declaration process becomes a real time saver when these workflows are in place.

E-Discovery and the Federal Rules of Civil Procedure tell us that ALL electronic information that is available to a litigation is discoverable.  This changes the game for Records Management principles, software, and processes.  This means that all those personal documents and emails, Facebook and Twitter updates, audit logs, security cameras, etc. are all discoverable.  Are these Records?

I think the answer to this question is YES.  They are all records, and our systems must manage them as such.  Also, the question about how long to keep them is a moving target as well, and we may have to throw out those old retention schedules.

We can target both paper and electronic records for destruction after the retention period has expired.  However our ability to locate and manage copies on flash drives, PST files, personal PC hard drives, the Cloud, and backup tapes is very weak at best.  Therefore we cannot be sure that something we destroyed still does not exist somewhere.  If it does exist, it is discoverable, and therefore it is still a Record as defined by the courts.

This is a very disruptive change to our way of thinking, what do you think?

Comments

Submitted by Shubhdeep Maitra September 08, 2010 - 1:14 AM

Quite true. The scope of a "Record" has increased considerably with FRCP rules and Sedona guidelines. I guess this will throw us back at a point where saving every bit of information irrespective of its content/context will start taking place.
The only way out as I see is through information governance......write something only when needed especially when dealing with electronic medium. Information governance will play a major role to roll out those norms while ensuring that transparency of work processes in maintained.

That leads me to think ....would these comments ever become part of a discovery process??

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Submitted by Wayne Hoff September 14, 2010 - 4:56 PM

I've had your very point boiling around in my head ever since the new FRCP emerged. If it's all discoverable, why wouldn't we treat even transitory documents as records?? I hope actually that the answer is no, because it means adding another layer of management to documents that traditionally recorsd managers haven't put a lot of effort into. And we're busy enough as it is.

What I don't really understand - perhaps someone out there can help - is how this is different from before. Before the advent of electronic data, when everything was paper and microfilm, was it any different? Wasn't all information subject to discovery then as well? If so, then what, truly and fundamentally, is different today other than data format?

Perhaps the difference is that we know WAY less about our corporate records today than we did then. There was a large but still finite number of pieces of paper in those days - whereas today, while technically it's a finite amount of information, the electronic corpus of data might as well be infinite for all of the effort and cost it takes to look at it properly in the face of a major litigation.

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Submitted by Randy Moeller September 15, 2010 - 7:59 AM

Nothing really changed with the revised 2006 FRCP but it did give consultants something to sell to those who didn’t understand. (wink) The ESI issue needed to be clarified as some never thought about it as evidence for litigation but it didn’t take something that wasn’t discoverable and make it discoverable overnight. The FRCP (or anything else) never stated to only look in your hard copy records and neither did subpoenas. I never read a subpoena that stated anywhere to only look at your hard copy records that are not personal or a non-record. Many companies never took up the debate of record/non-record as they had learned that potential evidence was everywhere so treat everything in that manner. That saved me a lot of meeting times over the years.

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Submitted by James Santangelo September 15, 2010 - 8:30 AM

All information can be discoverable, but being so does not make it records. If the information is relevant (relevant is the key term here) to ediscovery actions, then that becomes data that the company needs to retain. One can argue that because the company needs to retain this data, it becomes records and should be treated as such. However, any other information that is not qualified as records, are not records, and do not need to be retained beyond their useful life. For example, should a company keep TBs of email data for many years if only a small subset of the email qualifies as either relevant for ediscovery or as records?

The Sedona conference guidelines make a clear distinction between information and records: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, Second Edition, 2007. My position is against treating all information as records in order to ensure data retention and disposition can be properly applied.

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Submitted by Randy Moeller September 15, 2010 - 9:12 AM

Because we treat all as a record does not mean we keep everything for years. Not a business model I vote for. Keep all emails because we call it a record not non-record (or whatever)? Why? Many records/information/data have a short retention life as their value is small and they are not governed under a law or a law with a stated retention time. Value drives how long to keep something (including law as that can set value) not a debate on what it is. I’ll jump for joy when this week’s subpoena states “only what you consider a record.” Until then we’ll continue to retain (very short to very long) based on value.

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Submitted by Mark Mandel September 30, 2010 - 1:08 PM

I see that this topic has generated a lot of discussion. My feeling, based on what I have seen, changes in technology, and recent court cases, is that our RIM and ECM software solutions need to evolve. Let me give you a specific example:

In one major ECM suite product, a Records Declaration process is included that converts a document into a Record. This transaction locks the document, changes ownership, and starts the clock on the appropriate retention rule.

In the new world, if documents that have not been declared as Records are discoverable in a court case, we still need to put them on legal hold, locking them down. We need to be able to collect them and package them for discovery, ensuring that they are not destroyed until the hold is removed.

So the distinction between treating something as a Record or non-Record gets blurred. The tools for searching, legal holds, export, reporting, etc. need to work well regardless of the state of the content.

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Submitted by Douglas Schultz October 01, 2010 - 11:12 AM

Mark - your last sentence is what I believe is key in distinguishing records and non-records and that is the statement about the state of the content. All drafts or previous versions of a contract up until the final one are non-records. The final version has its state changed to that of record once both parties agree to the contract terms and it becomes evidence of a business transaction. All of the previous versions can be deleted at any point in the lifecycle of the content. If they aren't purged, they can certainly be subject to discovery and a legal hold once an organization is notified of litigation. I think you are right on that the same tools (search, holds, etc.) can be used for either records or non-records, and that sometimes confuses the distinction between the two.

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Submitted by Jesse Wilkins October 01, 2010 - 12:01 PM

I agree with most of the posts that argue for a distinction between record and non-record, even though both are discoverable. The difference to me is that if you say something is a record, you sure better have it and be able to produce it. If it's not a record, and you don't normally maintain it, it should be easier to explain its absence. Here's an example: Invoices are records. They are kept according to the retention schedule for 3 years. If requested within that period, there's no excuse not to have them; after that period, there's no excuse to have kept them.

On the other hand, the raw notes taken during a conference call are not records according to my retention schedule. They may inform other things that might become records but there is no requirement for me to retain them, or to forward them to my employer, etc. In the event of a subpoena or, in government, a public records request, they might need to be produced. But if I took those notes last week, used them for what I needed them for, and discarded them, there should be no liability for that.

Another way to look at it is through a budget. There are certain expenses that are planned, paid, etc. on a consistent basis. Now let's say you get a traffic ticket. You still have to pay it, but you wouldn't budget for it every month. The records are the planned expenses, the non-records but still discoverable information is the parking ticket. You have to do it if you have to do it, but there's no reason to do it if you don't.

As an aside, I keep saying "should", "may", etc. because while I think my thoughts comport to standard records management principles and practices, the Sedona Conference guidance, etc. I am continually surprised at rulings in this area that do require production of stuff that was already discarded, never kept in the first place, etc. Clearly there is room for improvement in understanding of those practices and their application.

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Submitted by Aaron Taylor October 05, 2010 - 12:37 PM

I wonder if two distinct conversations are causing the topic to become blurred. One conversation refers to normal RM practice of defining documents as information or as records, something that I believe is relevant and useful. The other conversation seems to be whether everything tagged as discoverable during a litigation event becomes a record. Perhaps I am over-simplifying this, but that seems to be the recurring theme regarding the subject. I see litigation events as what I would term an "exception" to normal records management practices as performed by a company, with the caveat that "exception" is used as a more mathematical or scientific meaning - a deviation from normal activities. Manned space flight to the moon was a pretty normal activity for NASA in the 1970's...Apollo 13 was a pretty significant exception. Hopefully, that is the case for most companies regarding litigation occurrences. In any event, this exception to me means that all records and information identified as discoverable and responsive to a litigation proceedings lose the need to be identified as "records" or "information" while they are sequestered. They are the product of the discovery and response, and now have special retention requirements...basically, that they are kept in an unaltered condition throughout the litigation process until resolution. The responding company would be well-advised to retain the "record" or "information" designation for their own use upon resolution of the matter; they will then be more readily-prepared to re-institute their retention requirements and lifecycle stages as the documents are released. But, while in litigation hold, there does not seem to me a need to agonize over the status of the documents - the requirement is the maintenance of those documents as put forth by legal process. Do we scrap the concept of record vs. information designations for an entire RM program to address an "exceptional event"? I would really think not...

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Submitted by Randy Moeller October 05, 2010 - 1:22 PM

This really gets to be an academic discussion for me until a subpoena states declared records only. Until then I better tell our employees not to keep the phone message slips and other junk. Declaring a record became part of the e-record process as you had to figure out what is going to go into your rather costly system as putting in everything is rather dumb. I never saw anyone stamp a hard copy record with a record declaration phrase. It just winds up in a folder.

All of our “stuff” does not have equal value. The phone message slip from my wife’s call is crap (in a business sense, not hers) so you don’t include it in a scanning operation. The 10,000 invoices this month are important to add to a controlled system and marry with data as the IRS will look at a few of them in the next year or two.

If my wife works for company X and the DOJ investigates us (her company, my company) for price fixing then the phone message I was stupid to keep (in violation of policy) may be evidentiary material with some of them invoices.

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This post and comment(s) reflect the personal perspectives of community members, and not necessarily those of their employers or of AIIM International