Bryan Cave is internationally recognized for our extensive experience in the laws of records management and other corporate integrity programs. Our approach in corporate integrity engagements is to perform not only as lawyers, but also as consultants. Unlike those of consultants who are not lawyers, our deliverables come to the client as an opinion of counsel that all applicable legal requirements, such as mandatory retention obligations, have been adequately addressed.
Of equal importance, we provide the client with the maximum records disposition opportunities consistent with applicable law. The recent amendments to the Federal Rules of Civil Procedure now mandate new forms of electronic discovery that can fast become sweepingly intrusive and expensive – often costing the litigant more than the underlying claim itself. One author refers to eDiscovery as an “autopsy without benefit of death.” Bryan Cave’s proprietary “legacy data remediation” procedures can significantly reduce unnecessary costs and risks of eDiscovery. We believe senior executives not only have the right, but also a fiduciary duty, to carry out the process of legacy data remediation.
Business records, like any other corporate assets, have a lifecycle. A company would not hold on to a laptop computer or server that has outlived its lifecycle. A record that is at the end of its useful life, and that stops providing a return on investment, must be disposed of.
Do we really need to keep every email that an employee ever sent or received? Do we really need to save every backup tape we have ever created? Some of those emails and tapes are many years old. The answer to both questions is a clear “NO.”
In addition to having no business or legal value to the company, some obsolete data may also be unfairly prejudicial. For instance, an off-hand unauthorized statement by an employee could nonetheless be used against the company in litigation to ascribe to it a position or conclusion that it never embraced. Absent what we call a “Triggering Event” giving rise to a “Legal Hold Directive”, business organizations have both the right and responsibility to dispose of obsolete records, provided all disposition is carried out consistently, in good faith and in a content-neutral manner. The goal of consistency is furthered by scrupulously adhering to the organization’s records retention schedule, which represents its predetermined judgment of each record’s lifecycle. We call this process “legacy data remediation” or “LDR”.
The basic deliverables of our practice are a Records Management (RM) Policy, Initial “Legalistic” Implementation Procedures and a Records Retention Schedule. We believe these are the minimum components of a viable RM Program.
The Policy is always specifically tailored to a client’s particular needs, characteristics and geographical reach. It will preserve as much as possible of the client’s language, style and current ways of doing business, so that implementation will result in the least possible disruption of business. The Policy usually consists of approximately 10 pages of “plain English” designed to touch all the applicable legal bases, while at the same time remaining easy to understand by every record maker in the client’s organization.
The Implementation Procedures give real life to the Policy. The Procedures enable all record makers to comply fully with applicable legal requirements, while at the same time permitting the client to avail itself of legacy data remediation opportunities and achieve best practices for the organization, so that important data can be retrieved quickly and easily when needed for business and legal purposes.
The “legalistic” Implementation Procedures are part of the basic engagement. They are intended primarily for use by the client’s inside and outside general counsel. The following is a partial list of legalistic procedures:
The Retention Schedule lists approximately 80 - 100 categories of records, and assigns a retention period for each. These periods are based on mandatory retention laws applicable to the particular client, statutory limitations and business (that is, nonlegal) considerations. As a result of our comprehensive RM knowledge and experience, as well as global capabilities, we never have to “reinvent the wheel,” because we are already experienced with all major records retention and handling requirements not only in the United States, but internationally as well. Our databases are kept up to date and complete.
We encourage our clients to pick and choose the specific guidance they need, and to phase the work over time. For instance, clients who are already well along in the process, or wish to use other inside or outside resources, may not need us to perform all – or even any - of the “preliminary work.”
Records Management is but one of the full array of corporate integrity programs. We advise clients in all of the following areas: