This week covered various areas and priorities surrounding records retention.  What steps and processes would you develop or implement at your organization to put legal boundaries around retention? Would you incorporate any of the schedulers, if so which one and why? 

CHAPTER

8

INFORMATION GOVERNANCE

Information Governance & Legal Functions
ITS 8

3

3

Dr. Mia Simmons

Chapter Overview

■ This chapter will cover pages

11

5-

14

5 in

your book.

■ This chapter covers how Legal functions

play a major role into IG.

2

2006 FRCP Procedure

■ Federal Rules of Civil Procedure (FRCP)

– Governed the discovery of evidence in

lawsuits and other civil cases.

– Apply to US district courts

– Amended in 2006 – organizations must

proactively manage the e-discovery process

to avoid sanctions

– Electronically stored Information (ESI) –

digital stored format for data.

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Revised
FRCP
Rules

4

FRCP 1—Scope and Purpose. This rule is simple
and clear; its aim is to “secure the just, speedy,
and inexpensive determination of every action.

FRCP

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—Pretrial Conferences; Scheduling;
Management . This rule provides guidelines for
preparing for and managing the e-discovery
process; the court expects IT and network literacy
on both sides, so that pretrial conferences
regarding discoverable evidence are productive

FRCP 33—Interrogatories to Parties . This rule
provides a definition of business es records that
are discoverable and the right of opposing parties
to request and access them

E-Discovery Reference Model

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Create and retain ESI
according to an
enforceable electronic
records retention policy
and electronic records
management (ERM)
program. Enforce the
policy, and monitor
compliance with it and
the ERM program.

Identify the relevant
ESI, preserve any so it
cannot be altered or
destroyed, and collect
all ESI for further
review.

Process and filter the
ESI to remove the
excess and duplicates.
You reduce costs by
reducing the volume of
ESI that moves to the
next stage in the e-
discovery process.

Review and analyze the
filtered ESI for privilege
because privileged ESI
is not discoverable,
unless some exception
kicks in.

Produce the remaining
ESI, after filtering out
what’s irrelevant,
duplicated, or
privileged. Producing
ESI in native format is
common.

Clawback the ESI that
you disclosed to the
opposing party that you
should have filtered
out, but did not.
Clawback is not
unusual, but you have
to work at getting
clawback approved,
and the court may deny
it.

Present at trial if your
case hasn’t settled.
Judges have little to no
patience with lawyers
who appear before
them not understanding
e-discovery and the ESI
of their clients or the
opposing side.

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E-Discovery Reference Model

E-Discovery Reference Model

■ Model is a planning tool that presents key e-discovery process steps.

■ Guidelines

– Implement an IG program

– Inventory your ESI

– Create & implement a comprehensive records retention policy, and

also include an e-mail retention policy and retention schedules for

major ESI areas.

– As an extension of your retention policy, implement a legal bold

policy that is enforceable, auditable, and legally defensive.

– Leverage technology

– Develop and execute your e-discovery plant.

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Intersection of IG and E-Discovery
■ Barry Murphy stated:

– Effective IG programs can alleviate e-discovery headaches by

reducing the amount of information to process and review,

allowing legal teams to get to the facts of a case quickly and

efficiently, and can even result in better case outcomes.

■ Legal Hold Process

– formal system of polices, processes, and controls is put in place to

notify key employees of a civil lawsuit (or impending one) and the

set of documents that must put on legal hold.

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INTERSECTION
OF IG AND E-
DISCOVERY

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Intersection of IG and E-Discovery
■ Kick-Start Legal Hold

– 3 basic steps

1. Define requirements.

2. Define the ideal process.

3. Select the technology.

■ IG & E-Discovery Readiness

– Establish a culture that both values information and recognizes

the risks inherent in it.

– Create a truly cross-functional IG team

– Use e-discovery as an IG proof of concept

– Measure ROI on more than just cost savings

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Destructive
Retention of

E-Mail

■ Destructive

Retention program

– Approach to e-

mail archiving
where e-mail

messages are
retained for a

limited time

– 90 Day retention

period

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Newer Technology to Assist
■ Predictive Coding

– Blend of several technologies that work in concert software that

performs machine language

– “court-endorsed process”

■ Technology- Assisted Review

– TAR computer-assisted review, is not predictive coding (non linear

review process

– Mechanisms

■ Rules driven

■ Facet driven

■ Propagation based

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Kahn’s 8
Essential
Steps to

Defensive
Disposition

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Verify and
document

On an ongoing basis, verify and document the efficacy and
results of the disposition program and modify and/or
augment the process as necessary

Apply
Apply disposition methodology to content as necessary,
understanding that some content can be disposed with
sufficient diligence without classification.

Test
Test, validate, and refi ne as necessary the efficacy of
content assessment and disposition capability methods
with actual data until desired results have been attained.

Assess
Assess content for eligibility for disposition, based on
business need, record retention requirements, and/or legal
preservation obligations.

Develop
Develop a mechanism to modify, alter, or terminate
components of the disposition process when required for
business or legal reasons.

Develop and
document

Develop and document the essential aspects of the
disposition program to ensure quality, efficacy,
repeatability, auditability, and integrity.

Select
Select a practical information assessment and/or
classification approach, given information volumes,
available resources, and risk profile.

Define

Define a reasonable diligence process to assess the
business needs and legal requirements for continued
information retention and/or preservation, based on the
information at issue.

Retention Policies & Schedules
■ Organizations can legally destroy records—but will have a greater legal

defensibility if:

– The authority to destroy the records is identified on a retention

schedule.

– The retention requirements have been met.

– The records are slated for destruction in the normal course of

business.

– There are no existing legal or financial holds.

– All records of the same type are treated consistently and

systematically.

■ A key consideration in developing retention schedules is researching and

determining the minimum time required to keep records that may be

demanded in legal actions.

■ “A limitation period is the length of time after which a legal action cannot

be brought before the courts

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Retention Policies & Schedules
■ Records Retention Schedule

– delineates how long a (business) record series is to be retained, and

its disposition after its life cycle is complete (e.g., destruction,

transfer, archiving); the schedule also contains “lists of records by

name or type that authorize the disposition of records

■ Functional Retention Schedule

– groups record series based on business functions, such as financial,

legal, product management, or sales.

■ Master Retention Schedule

– Retention and disposition requirements for records series that cross

business unit boundaries.

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Benefits of a Retention Schedule

■ Reduces legal risk and legal liability exposure.

■ Supports a legally defensible records management program.

■ Improves IG by enforcing uniformity and standardization.

■ Improves search quality and reduces search time.

■ Provides higher-quality records information to improve decision support for knowledge workers.

■ Prevents inadvertent, malicious, or premature destruction of records.

■ Improves accountability for life cycle management of records on an enterprise-wide basis.

■ Improves security for confidential records assets.

■ Reduces and minimizes costs for maintaining records.

■ Determines which records have historic value.

■ Saves hardware, utility, and labor costs by deleting records after their life span.

■ Optimizes use of online storage and access resource

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Chapter Summary
■ IG serves as the underpinning for efficient e-discovery processes.

■ ESI is any information that is created or stored in electronic format.

■ The goal of the FRCP amendments is to recognize the importance of

ESI and to respond to the increasingly prohibitive costs of document

review and protection of privileged documents.

■ Implementing IG, inventorying ESI, and leveraging technology to

implement records retention and LHN policies are key steps in e-

discovery planning.

■ LHN management is the absolute minimum an organization should

implement to meet the guidelines, rules, and precedents.

■ Predictive coding software leverages human analysis when experts

review a subset of documents to “teach” the software what to look

for, so it can apply this logic to the full set of documents.

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Chapter Summary
■ TAR, also known as computer-assisted review, speeds the review

process by leveraging IT tools.

■ In TAR, there are three main ways to use technology to make legal review
faster, less costly, and generally smarter: rules driven, facet driven, and
propagation based.

■ It is important to have the right people in place to support the technology
and the work flow required to conduct TAR.

■ A defensible disposition framework is an ecosystem of technology,
policies, procedures, and management controls designed to ensure that
records are created, managed, and disposed of at the end of their life
cycle.

■ Retention schedules are basic tools that allow an organization to prove
that it has a legally defensible basis on which to dispose of records.

■ The master retention schedule contains all records series in the entire
enterprise.

■ “Records retention” defines the length of time that records are to be
kept and considers legal, regulatory, operational, and historical
requirements.

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Information Governance

Chapter 8

Complete Week 7 Objectives