Apply litigation hold rules to electronic records – A litigation hold (a.k.a. “legal hold” or “hold order”) is the process for temporarily suspending the disposition of records which are otherwise eligible for destruction or transfer. Courts and/or government agencies require this to be done when an ongoing matter (e.g., litigation, government investigation or audit) involves records and information that may be important to resolving the dispute or ensuring a fully-informed investigation. When a litigation hold is in effect, retention and destruction rules are temporarily suspended on all related information.
Many organizations create a litigation support team made up of representatives from Legal (or Compliance), RIM, IT and the business unit to ensure the effective management of the litigation process itself. Legal generally identifies the scope of the litigation/investigation and the types of records that are subject to the hold order. It is then up to RIM and IT to figure out which systems are affected and how to apply the hold order. Hold orders will affect any and all sources of records and information – whether in hard copy, electronic form or email. This is a complex undertaking, for even the simple forms of litigation. The following areas are the chief responsibility of the RIM/IT team:
- Document the overall search strategies used to identify and protect relevant records.
- Identify electronic storage locations that were searched for records, including email accounts of named key individuals.
- Identify the electronic systems that were reviewed to determine whether they contain relevant records. Identify any sources or locations of records not searched.
- Preserve documents to prevent spoliation during the inventory, collection and preservation stages of the hold order.
In addition, RIM and IT have an opportunity to collaborate in the management of the legal hold process itself. In addition to preserving the records and information, the courts scrutinize the organization’s handling of the legal holds to ensure the preservation responsibility is taken seriously.
It is increasingly important to track the communication efforts that have gone into implementing the legal hold. Litigation hold software allows the documentation of legal hold actions such as (1) when Legal initially issued the hold order, (2) whether all key individuals received the hold order, (3) whether hold order recipients acknowledged their receipt and understanding of the hold order, (4) how frequently Legal sent reminder notices to key individuals, etc.
The RIM/IT collaboration can help organizations avoid problems and potential financial sanctions by providing search, retrieval, aggregation, and protection of electronic information related to the event.
Integrate records requirements to IT deployment – It is clear that information governance cannot be effective without the joint efforts of RIM and IT. It is equally clear that trying to retrofit a software configuration to meet records management requirements is likely to result in inadequacies and inefficiencies. Records may be difficult to locate unless they are classified according to standard terminology. It may be impossible to apply the organization’s retention policy to records and information unless the classification scheme ties to the retention policy itself.
For example, nobody can apply retention and disposition decisions to a folder that contains “Excel documents.” It is not enough to roll out a piece of new software or technology and to tell employees they can “organize this however you want to.” An effective partnership between RIM and IT can help ensure that the recordkeeping requirements are adequately addressed during the rollout of new systems.
The RIM team should be represented in any planning efforts for systems which create and/or capture records. The business units may have detailed ideas of what they want the software to do, but they may not be aware of all the recordkeeping requirements that need to be considered. They may be unaware of long-term storage needs and preservation issues. A representative from the RIM team should be involved in requirements definition phases of IT strategy development on a routine basis.
Once a software solution has been programmed, the RIM team should be involved in the testing and implementation phases to ensure that the programming actually meets the recordkeeping requirements identified in the needs assessment. The RIM team will continue to be a valuable partner throughout the deployment process and can assist in employee training. As the software is used over the long-term, new recordkeeping requirements can be expected, and RIM can assist in identifying these changing needs. That work begins to lay the foundation for needs assessments tied to software upgrades and replacements.
A single master repository is not usually a realistic or practical solution for organizations with multiple and diverse information technology needs. However, many records management, document management, and content management systems permit unified management of large, distributed records systems. They may also permit custom configurability with respect to key functionality.
Legacy systems may contain records that require preservation because of fiscal, legal, or business requirements. The records have to be accessible and usable throughout their lifespan, so that the organization can meet its retention requirements. This requirement means that RIM and IT must determine the appropriate handling of the legacy information in the system being retired. In some cases, this means that the organization must preserve the legacy system in working order. Or, it may mean that the data must be migrated to the new system. RIM and IT must make such decisions in the light of the overall retention policy and any record hold orders that affect the legacy records.
As we have seen, RIM and IT professionals can leverage their collective expertise by working together and fostering a productive relationship where their assets and value are clearly evident to the organization.
Diane Carlisle, CRM is the director of Professional Resources for ARMA International. In this position, she is responsible for guiding the strategic direction of ARMA’s content development and delivery to RIM professionals. She has been a practitioner of records management, a consultant to a variety of industries, and a frequent speaker and author. She is a Certified Records Manager and a charter member of ISO TC46/SC11, the committee that develops international records management standards. Diane can be reached at [email protected].
(GARP and Generally Accepted Recordkeeping Principals are bothregistered trademarks with the Patent and Trademark Office.)