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Records Management 101. Boston Association of Legal Administrators September 24, 2009 Dana C. Moore National Records Manager Foley & Lardner LLP. Learning Objectives.

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records management 101

Records Management 101

Boston Association of Legal Administrators

September 24, 2009

Dana C. Moore

National Records Manager

Foley & Lardner LLP

learning objectives
Learning Objectives

The ability to identify, organize, maintain and access needed information, and properly dispose of the rest pays off in cost savings, efficiency, regulatory compliance including e-Discovery, and reduced litigation risk.

After attending this session, you should be able to:

  • Identifythe key issues and best practices of managing records, regardless of media
  • Recognize the technology available to support a records management system, including bar-coding, scanning and software
what we ll talk about today
What We’ll Talk About Today

What is Records Management?

Core requirements and best practices for compliant records management

Records Management program development

Records Retention development

records management
Records Management…
  • An established information management discipline which:
    • Manages recorded information from cradle to grave
    • Enables:
      • Access to information
      • Effective cost management
      • Risk management
records management1
Records Management…
  • Essential to:
    • Finding needed information within large stores of electronic data
    • Managing data capacity
    • Coping with ESI (Electronically Stored Information)
      • Locating
      • Reviewing
      • Preserving
      • Producing
records management2
Records Management…

Records Management Life Cycle

slide7

Applying the Records Management Life Cycle

1. Create

Records

2. Store

Records

3. Use

Records

4. Inactivate

Records

  • Dispose
  • Of Records
  • Create
  • Name
  • Classify
  • File
  • (Physical
  • Or
  • Electronic
  • Repository)
  • Access
  • Reference
  • Rely On
  • Archive
  • (Offsite or Offline)
  • Set Retention
  • Period
  • Destroy
  • Return
sound records management programs address
Sound Records Management Programs Address…

What is a record?

Public access v. confidentiality

Volume

Redundancy

Consistency

Legal issues

what is a record
What is a Record?

Recorded information, regardless of media, that evidences an organization’s business decisions, or which supports future decision making

public access vs confidentiality
Public Access vs. Confidentiality
  • Public Access
    • Finding the right information when you need it, to:
      • Be informed
      • Support past decisions
      • Make new decisions
      • Provide a basis for new records
  • Confidentiality
    • Protection of client information
    • Protection of Firm information
    • Expectations of privacy
volume
Volume
  • Too Much Information
    • Inhibits access
    • Compromises system performance
    • Escalates costs for production
redundancy
Redundancy
  • Every copy of a record must be produced
    • Which one is the official copy?
consistency
Consistency

A legally defensible records management program needs to be followed consistently

legal issues
Legal Issues
  • Legally mandated retention periods
    • Regulations
    • Statutes
  • Compliance with legal holds
    • Obstruction of justice
    • Spoliation
    • Compliance with federal rules of discovery
  • Consequences
    • Adverse instructions, sanctions, fines, fees, lost revenue, malpractice allegations
legal issues continued
Legal Issues continued
  • Ethical obligations of lawyers re representation records
    • Competent representation
    • Confidentiality
    • Duty to keep client informed
    • Duty to protect client property
    • Duty to return property at end of representation
  • Client ownership issues
    • Entire file states v. “End product” states
core requirements and best practices for compliant records management
Core Requirements and Best Practices for Compliant Records Management
  • Physical and electronic records are governed by the records management program
    • Executive-level program responsibility
    • Policies and procedures
    • Roles and responsibilities with proper delegation
    • Communication and training
    • Auditing to measure program compliance
    • Enforcement
    • Ongoing Program Improvement
executive level program responsibility
Executive Level Program Responsibility

The General Counsel, COO, CFO, and/or Managing Partner must be the authority for the policy

Compliance accountability must reside at the “C-level” or at the business head level

The records manager must have company-wide authority and visibility

policies procedures
Policies & Procedures
  • Definitions
    • What is a record?
    • Approved repositories
    • Client owned materials
    • Etc.
  • Process documentation
  • Records retention schedules
roles responsibilities
Roles & Responsibilities
  • General Counsel; Risk Management Partner; Firm Management
    • Mandates the program
  • Records Manager
    • Will make policy, determine program outcomes
    • Designs and communicates processes to manage records in the organization
    • Has accountability for program compliance and success
roles responsibilities1
Roles & Responsibilities
  • Technology Department
    • Implements technology to support policy and business workflow
  • Records Custodian
    • Recipient/Owner
communication training
Communication & Training
  • Not enough to just create policies & procedures!
  • Training
    • Records Management Policy
    • Basic responsibilities
    • Required for all lawyers, employees and contractors
  • Communications
    • Regular and planned
auditing compliance
Auditing & Compliance
  • Develop an approach to ensure the records management policy is followed
    • Provides a method of measuring & improving compliance
  • Incorporate with other process audits
  • Require annual compliance certification – and then spot check
  • Demonstrates enforcement
enforcement
Enforcement
  • Can non-compliance result in employee discipline?
    • Then that action must be taken
    • Policy should identify consequences
  • Determine why violations occur
    • Lack of awareness, confusion, willful act
  • All lawyers and staff should sign a certificate of understanding
  • Ensure that employees have the correct tools to comply
ongoing program improvement
Ongoing Program Improvement

Measure progress

Find bottlenecks

Look for opportunities to reduce cost or improve cycle time

Add technology where it makes sense

key elements to developing a records management program
Key Elements to Developing a Records Management Program

Taxonomy and filing guidelines

Repository concepts

Technology

Procedures and workflow

Retention schedule development

People and resources

taxonomy filing guidelines
Taxonomy & Filing Guidelines
  • Taxonomy = subject categories
    • How records are classified
  • Filing guidelines
    • What types of records are properly filed within each category
  • Together, the taxonomy and filing guidelines are:
    • The “file plan” of the organization
    • The backbone of the records program
taxonomy development
Taxonomy Development
  • Review current lists
  • Survey users for common folder titles
  • Develop filing rules
    • Descriptions that identify applicable records for each category
  • Approaches
    • Minimal (representation, administrative, convenience)
    • Broad (100 or less)
  • Match DMS/RMS classification
repository concepts
Repository Concepts
  • Where records are filed
  • Have as few as possible
  • Access based on client/matter ID
  • In general
    • Physical records in a file folder
    • Electronic records on a server
  • What about backup tapes?
    • Not a repository
    • Disaster recovery only
repository concepts continued
Repository Concepts (continued)
  • Document Management System (“DMS”)
    • Electronic records, including email
  • Records Management System (“RMS”)
    • Index of folders for hard copy records
  • Archives
  • Local or shared drives
  • Backup systems
  • Mail System
    • Communication Tool
    • Not designed as a repository
technology official repositories
Technology: Official Repositories
  • Managing data capacity
    • DMS
    • RMS
    • Mail System
    • Archives
    • Litigation Support Databases
technology dms
Technology: DMS
  • Document Management System
    • Library structure
    • Matter centricity
      • Shared workspaces
    • Folder structure
    • Integration tools
      • Email
    • Security
      • Public vs. Private (Ethical Wall/Confidentiality)
    • Backup Schedules
technology rms
Technology: RMS
  • Records Management System
    • Primarily an index of physical records
    • Integration Tools to file email
    • Records declaration
      • Locks down the email
    • Drives records retention
    • Accessibility
      • How do your lawyers work?
      • Offline availability
technology mail system
Technology – Mail System
  • Mail system management
    • Size limitations
    • Filing email – where?
      • De-duplication identification
      • Automatic profiling
      • Drag and drop
      • Send and file
    • Email retention (auto deletion)
      • Inbox
      • Sent Items
      • Deleted Items
      • Private folders
    • Backup Schedules
technology email archives
Technology: Email Archives
  • Short or long term retention?
  • Organization
  • Software applications (storage)
    • DMS
    • Stubs vs. entire email
    • PST
  • Who has access?
  • Retention
  • Backup schedules
technology litigation support databases
Technology: Litigation Support Databases
  • Who owns the data?
  • How is data organized?
  • Location
  • Retention
    • Storage of media data provided on
    • Return to client at matter close
  • Backup schedule
procedures workflow
Procedures & Workflow
  • Folder Management
  • File Transfers & Attorney Mobility
  • Compliance issues
    • E-Discovery
    • Legal Holds
    • Ethical Walls
  • Records retention
folder management
Folder management
  • Creation
    • Records staff
    • Secretary or practice group file clerk
  • Circulation
    • Tracking of file location
  • Storage (active/inactive)
    • Centralized file rooms
    • Practice group work rooms
    • Off-site storage facilities
slide41

File Transfers: Incoming

  • Develop an intake workflow:
    • Inventory of physical records
    • Review and loading of electronic records
    • Confirming authorization to have information
    • New client/matter assignment
      • Every matter has a unique ID
      • Only accept work for active clients
slide42

File Transfers: Outgoing

  • Client has the right to access the file
    • Written request from the client, not new counsel
  • Collecting physical and electronic records
    • Review for privilege and work product prior to release
  • Update systems
    • Accounting
    • Conflicts
    • Records
    • Docket
compliance issues
Compliance Issues
  • Distinction between client and lawyer records obligations
  • E-Discovery
    • Federal Rules of Civil Procedure (“FRCP”)
    • Approach
  • Legal Holds
distinction between client and lawyer records obligations
Distinction Between Client and Lawyer Records Obligations
  • Client owns its records
    • Can make policy and business decisions without considering outside interests
  • Lawyer has obligations to the law firm AND the client
    • Law firm records management program must
      • Protect the firm and manage firm resources
      • Support the lawyer’s ethical obligations to clients
e discovery and rim converge
E-Discovery and RIM Converge
  • Records Management and Retention
  • Compliance Activities
    • Discovery
    • Legal Holds
e discovery approach
E-Discovery Approach
  • Only 8% of companies with records programs fully address ESI
  • “Innocently unorganized” doesn’t interest judges, they just want the evidence. (Morgan Stanley)
  • Litigation Readiness Plan – the interconnectivity of records, paper and electronic discovery and compliance processes.
  • Four key business benefits of being prepared:
    • Reducing risk associated with discovery
    • Shortening the time to produce data
    • Reducing costs of discovery
    • Minimizing business disruption
the frcp amendments implemented 12 01 2006
The FRCP Amendments Implemented 12/01/2006
  • Rule 16(b), 26(f), Form 35
    • Early discussion of e-discovery issues
  • Rule 33(d)
    • Produce ESI in interrogatory response
  • Rule 34(a)
    • Definition of ESI (electronically stored information)
  • Rule 34(b)
    • Form of Production
  • Rule 26(a)(1)(B)
    • Location of all ESI
  • Rule 26(b)(2)(B)
    • Reasonably Accessible Information
  • Rule 26(b)(5)(B)
    • Belated assertion of Privilege
  • Rule 37(f)
    • Safe Harbor on Sanctions
  • Rule 45
    • Subpoena on ESI
legal holds
Legal Holds
  • What is a Legal Hold?
    • The preservation of records that may be relevant to lawsuits, claims or investigations (pending or potential) against the firm or a client of the firm based on advice provided by the firm during representation
legal holds1
Legal Holds
  • Duty to impose is triggered when the firm is “duly notified”:
    • Subpoena
    • Order to produce records
    • Conversation with a client
    • Lawyer believes there may be a malpractice claim
    • Disgruntled employee
  • Failure to comply can =
    • Spoliation
    • Obstruction of justice
legal hold process
Legal Hold Process
  • Identified authority issues a legal hold
  • Determine the scope
  • Notification & Acknowledgement
  • Collection & Preservation
    • The physical records are labeled to indicate they are under hold
    • Electronic records are secured
    • While the hold is in place all scheduled destruction activities are suspended
      • But the retention period continues to run
legal hold processes continued
Legal Hold Processes (continued)
  • Maintenance of the hold
    • Regular reminders are sent to involved individuals
  • Hold administration
  • Hold is lifted when:
    • Settlement
    • Litigation/all appeals have expired
  • When the hold is lifted, electronic records are unlocked, and physical records are “unlabeled”
    • Scheduled destruction activities resume
retention program development
Retention Program Development
  • Retention schedules
  • Research
  • Disposition
  • How?
  • Communication
retention schedules
Retention Schedules
  • Define records collections
  • Define the various types of records scheduled within collections
    • Official, convenience, non-record
    • Short term retention for non-official records
  • At what level should retention be set?
    • Matter
    • Folder
    • Document
retention schedules continued
Retention Schedules (continued)
  • Define conditions for starting the retention period
    • After creation
    • After termination
    • After matter closed date, etc.
  • Define disposition (return to client, destroy, make available to historical archives, etc.)
retention research
Retention Research
  • Consider:
    • Laws and regulations
      • Professional guidelines
    • Fiscal / tax / audit requirements
    • Operational or business requirements
    • Historical value
  • Tools: Subscription services, records management consultants, some law firms
  • Competent legal and / or records professionals within the organization should review and approve the retention schedules
retention research continued
Retention Research (continued)
  • Solicit feedback from legal team leadership
    • Define exceptions to standard retention period
      • Contracts/Agreements
      • Representation of minors
      • Intellectual property
      • Estates/trusts
records disposition
Records Disposition
  • If records are to be destroyed, ensure that they are completely destroyed in all forms
  • Document the disposition
    • A form or other documentation should indicate:
      • Who approved and performed the disposition?
      • When were the records disposed of?
      • What records were disposed of?
      • How much material and/or what time range was disposed of?
retention communication
Retention Communication
  • Engagement Letter:
    • Language re the firm’s records management and retention policies
    • Client must keep attorney aware of their location
    • Electronic records may be kept in lieu of printed records
    • Return of client’s property at the end of the matter
    • Client’s right to request other portions of the file
retention communication1
Retention Communication
  • Should the firm send additional notice:
    • At the end of the matter (when the retention period is assigned?)
      • Reminder of firm policy
      • Option to have the file returned immediately
    • At the end of the retention period, when the records are eligible for disposition?
    • What does your malpractice insurance carrier say?
retention management
Retention Management
  • Initial retention decisions
    • Review records at time disposition is set
      • Return client owned documents
      • Weed/Purge the file
      • Determine retention period
  • Authorize final disposition at end of retention period
  • Records destruction
    • Hard copy and electronic records
people and resources
People and Resources
  • Records Management Programs require people to:
    • Manage general records tasks
    • Manage the retention program
      • Review records at time disposition is set
        • Return client owned documents
        • Weed/Purge the file
        • Determine retention period
      • Authorize final disposition at end of retention period
      • Physically destroy records
people resources
People & Resources
  • Examine staffing
  • Define service level expectations
  • RIM Core Competencies help to identify roles you need to match the responsibilities you task to RM
summary
Summary
  • Records Management is a solvable problem
    • Enhances lawyer and staff productivity
    • Manages firm risk and cost
  • Be realistic about:
    • The time it will take
    • The resources it will take
    • The cultural challenges it will create
  • Understanding the attorney perspective
    • Build consensus
records management checklist
Records Management Checklist

Build a team

Get a commitment for support & resources

Build a system

Write policies and procedures

Examine staffing

Train, train, train

Develop compliance and auditing program

records management 1011
Records Management 101

QUESTIONS?

Dana C. Moore

National Records Manager

Foley & Lardner LLP

dcmoore@foley.com