Saving Your Documents - PowerPoint Presentation

Slide1

Saving Your Documents Can Save You

Anne D. Harman,

Esq

.

Bethany B.

Swaton

, Esq.

Dinsmore

&

Shohl

LLP

2100 Market Street, Wheeling

(304) 230-1700

Anne.harman@dinslaw.com

Bethany.swaton@dinslaw.comSlide2

Importance of Documents for Business PurposesIn 2010, estimate that 294 billion emails sent each daySources of electronic information: PCs, laptops, smart phones (i.e., blackberries and Iphones), websites, data recorders,

Ipads

, jump drives, etc.

Difficulty determining what electronic information to keep and for how long Slide3

Laws Governing RetentionNo universal law on document retentionImportant to consider legal and business requirementsLegal: local, state, federal laws and regulations may mandate that certain documents be kept for a certain period of time

Business: business practices may require information be kept for a certain period of time

Common law duty to preserve documents and information when litigation is reasonably anticipatedSlide4

Benefits of a Document Retention Policy Lessens liability;Puts clients in a position to easily access data that might be exculpatory, or at least, supportive of the company in defense of a claim;

Assist in settlement;

Aids the spirit of transparency;

Provides surety to the organization that it is retaining all records necessary to the business, regulatory, and legal needs of the organization; and

Provides guidance for destroying documentsSlide5

Developing a Document Retention PolicyConsider the business, regulatory, and tax needs of the organizationGroup together individuals from various parts of the organization to develop the policyManagement, finance, business, legal, and ITSlide6

Developing a Document Retention PolicyNot every document created must be kept pursuant to the policy; rather, only documents qualifying as a business record must be retained.determine documents that can be classified as a special subset of information deemed to have some enduring value to an organization and warranting special attention concerning retention, accessibility, and retrieval

Documents that must be considered for retention:

Paper documents

Electronic documents including Word processing documents, e-mail, web pagesSlide7

Developing a Document Retention PolicyDetermining a retention schedule:Outside of industry regulations and legal requirements, a business need only keep documents and information as long as necessary for business purposes.If a policy limits the length of time of retention, the company will have less information to search and review if served with a document request.Slide8

Developing a Document Retention PolicyUnderstand and evaluate the records management practices already in placeDetermine where and how documents and information are kept (i.e., paper form, backup tapes, filing cabinets, computer files, etc.)Determine backup procedures used (central servers, backup tapes, other imaging systems)

Determine individuals who may have responsive business documents

Using the retention guidelines, determine whether documents currently kept should be retained or destroyedSlide9

Retention Policy ProvisionsIn general, the policy must serve a legitimate business purpose and not be a means for cleansing files prior to litigation.Facilitating easier access to stored information;Controlling growth of information;Reducing operating and storage costs;

Improving efficiency and productivity.

The policy must be flexible to be suspended should a litigation hold be necessary.Slide10

Retention Policy ProvisionsPeriod of time during which records have value;Period of time records are considered to be active and thus maintained in the primary filing area;

Point in time when records can reasonably be transferred to a secondary storage facility;

Method of records disposal or disposition;

Procedures for operating and ensuring compliance with the retention and disposition program;

Relationship between records retention and other aspects of records management program (i.e., legal hold policy, e-discovery response policy, a data privacy policy, e-mail usage policy)Slide11

E-mail RetentionE-mail may be included in the overall document retention policy.Typical features for retaining e-mail:User mailbox size limitations (quota);

Automatic deletion of user mailbox contents

Deletion after a certain period of days coupled with options so that the user can move e-mail of significance to an appropriate alternative storage location

Extended storage options

Restriction on local storage

Prohibit users from placing information on local PC hard drives (other devices) to avoid the problem that local hard drives cannot be accessed by others and are not backed up. Slide12

Aids for Retaining DocumentsComputer software filtering programs that can be customized to search messages, attachment, and other electronically-stored information for key words to save electronic informationBackup tapesServers Slide13

Implementation and EnforcementDevelop enforcement procedures to ensure that all employees follow the policy and its procedures.Create detailed logs of record-purging and back-up activities. Any policy must be communicated to all employees.

Periodically review and audit to determine if changes must be made.Slide14

Litigation HoldOnce any judicial or investigative proceeding is contemplated or begins, companies should automatically suspend the retention policy.Implementing a litigation hold involves two questions:When does the duty to preserve begin for litigation-related records?

What evidence must be preserved?Slide15

Litigation Hold – Preserving DocumentsIdentify, locate, and maintain information relevant to specific, predictable, and identifiable litigationThe duty to preserve electronic and paper documents supersedes records management policies that would otherwise result in the destruction of records and other information. However, the business must continue in its business operations.

Businesses have a duty to balance in good faith the need to preserve evidence and the need to continue operations. Slide16

Litigation Hold – Notice to EmployeesBusinesses need to communicate to affected persons the need for and scope of preserving relevant recordsNotice to employees of the need to preserve documents should include:

Describe the kind of information that must be preserved so that the affected custodians of data can segregate and preserve identified files and data;

Address preservation of data in multiple locations; and

Include that the complete suspension of normal document management policies is not required

Send notice to the following:

Employees reasonably likely to maintain documents relevant to the litigation or investigation;

IT department and any third parties that provide IT servicesSlide17

Consequences and SanctionsRule 26 of the Federal and West Virginia Rules of Civil Procedure requires the disclosure of relevant information. Failure to comply with production of relevant information can lead to court-imposed sanctions.Morgan Stanley - $1.4 billion in compensatory and punitive damages after being found guilty of discovery abuses stemming from its lack of knowledge regarding the storage of discoverable information

UBS Systems (

Zubulake

line

)Slide18

Consequences and SanctionsRule 37 contains a safe harbor for companies who fail to provide electronically-stored information lost as a result of the routine, good-faith operation of an electronic document retention system.

Courts have found that destruction of relevant electronic evidence, if done routinely in the ordinary course of business, does not automatically give rise to an inference of knowledge of specific documents’ destruction, must less intent to destroy those documents for litigation-related purposes.

Courts focus on culpability: in the circumstances of the present case, should a party bear culpability and consequences for the loss of electronic data (i.e., failing to take reasonable steps to ensure a good faith effort to preserve relevant electronic data may lead to spoliation instructions or other sanctions).Slide19

Anne D. Harman, Esq.

Bethany B. Swaton, Esq.

(304) 230-1700

Anne.harman@dinslaw.com

Bethany.swaton@dinslaw.com