HOLD UP!

By Helen Streck

Your organization is involved in several litigation matters and another legal hold has just been issued today. Now, even MORE documents are relevant to the matter and must be put on hold and preserved from destruction. These legal holds suspend the retention schedule requirements for several retention classifications. As the number of litigation matters continue to increase, it seems that no one wants to apply the records and information management (RIM) program elements to their information. To make matters worse a group of employees in the Sales Department has gone to IT, without including you, to discuss designing a new system for tracking customer data. You begin to wonder if there is any need to have a RIM Program. Should you just throw up your hands and let chaos reign? Are there any elements of the RIM Program you can apply that can help the organization during times of discovery and litigation?

Of course there are!

First of all, remember a well-written legal hold only includes records and information that is relevant to the matter and does not require all information to be held. Not everything that is created or received by an organization necessarily needs to be saved. The first step in determining what RIM Program elements should be applied is to read the legal holds to determine what data and date range is relevant to the hold.

Once you know what data is subject to a legal hold, a RIM Program should do the following.

1. Determine what records and information should be preserved and make sure that the information is being preserved by the business. Find out if they need help in sending hard copy documents to storage or archiving electronic data in a compliant manner. Being under a legal hold does not mean it has to be in your office or on your computer. The organization should have controls and processes to manage the data both in active and archive locations.

2. Apply retention requirements to the records and information not covered by a legal hold. The records and information not covered by the legal hold should comply with the retention schedule, and it is critical to the organization that all governance documents, including retention schedules, are adhered to at all times to demonstrate a compliant organization. You can support archiving efforts for electronic data by reviewing procedures and ensuring that the classification of the data sets is adequate for both retention and discovery purposes.

3. Work with IT to ensure preservation of data subject to the legal hold from systems that are eligible for retirement. IT might be relieved to know that they can go ahead with plans for retiring systems as long as there is a controlled process that assures that data relevant to a legal hold is being preserved. Assuring it is preserved requires IT to involve the Records Manager and the responsible attorney.

4. Review abandoned or orphaned data sets for relevance. Data that needs to be held can be archived offline. Data that does not need to be held may be deleted, but either way abandoned data does not have to remain on the system. By moving to an archive if it is potentially relevant, an IT or RIM organization can improve the classification of that data in the event that the Legal Department needs it now or the future. Better classification will reduce future discovery costs.

5. Meet with litigators and the discovery teams to review legal holds that have been in place for an extended period of time. Has the matter progressed or can the scope of the relevant documents be refined? When records and information is released from a legal hold, remind staff to follow the retention schedule requirements to assure compliance with company policies.

There is no need to put a “hold” to the elements of the RIM Program. During litigation, more than ever, management should comply with the requirements to continue demonstrating that RIM controls and processes are carried out in the normal course of business. Compliance with a Records and Information Management Program should not stop just because litigation hits an organization. Applying RIM processes and controls during discovery and litigation can be done.

Helen serves as records management consultant in Shook, Hardy & Bacon’s Tort Section. Her expertise in records and information management has its foundation in real-world experiences forged from a career in the business that spans over 25 years. She has consulted on all aspects of records and information management, including the development and implementation of litigation hold protocols, electronic discovery response plans, and data privacy initiatives.