Retention - It’s More Than Just a Records Management Issue

Mary Anne Fry – King & Spalding Shawn Knight – Vinson & Elkins Bob Dolinsky – eSentio Technologies

Introductions • Mary Anne Fry

– Director of Libraries and Records– With firm since 1977 in current role since 1991– Reports to Partner in Charge of Information services

• King & Spalding Overview– Thirteen Offices (5 International)– 2000+ Users– Practices – Transactional and Litigation

– Records Environment• Decentralized• Records Policy in Place Since 2005• Records Governance – GC and Business Review Committee• Has a policy, has the tools in place to support the policy

currently developing processes

Introductions • Shawn Knight

– Director of New Business Intake and Records– With firm since 1992, in current role since 2003– Reports To General Counsel

• Vinson & Elkins Overview– Thirteen Offices (8 International)– 1800+ Users– Practices – Transactional and Litigation

– Records Environment• Decentralized• Records Policy in existence for 10 years• Records Governance – GC • Have a policy (hardcopy client files), retention schedule for

client and admin files, planning to implement the processes

Introductions

• Bob Dolinsky– Director – eSentio Technologies– Former CIO at an AmLaw 100 Firm– Focus on Records Management Assessments and Policy

Development, Strategic Technology Planning, Practice Support Assessments and Planning and Business Continuity Planning

• eSentio Overview– Technology Consulting and Implementation Services to

AmLaw 200 Firms

Agenda• Background – Why Is This Topic Important?

• What Is a Record?

• Where Does Records Management Fit In a Law Firm?

• Who Should Be Involved with Records Management?

• Issues and Challenges -- Developing a Records Policy and Retention Schedule

• Lessons Learned

• Q&A

Why Is This Topic Important?

• Everyone with a computer is now a records manager• Definition of Records Management has evolved • Comply with Regulations and Laws• Assume Potential for Lawsuit with All Records –

Litigation Holds• Discovery• Consistency / Avoid “Spoilage” Charge• Client Expectations• Savings & Efficiencies

Why Is This Topic Important?

• Who has a Records Policy?

• Is that policy being followed?

• Does the policy cover electronic as well as hardcopy?

What Is a Record? Stereotypes & Misconceptions

What Is a Record? Stereotypes & Misconceptions

• A Record – IT perspective– Composite variables that can store data values of different

types

• A Record – RM perspective

The ARMA definition of a record is:Records are information assets and hold value for the organization. A record is the evidence of what the organization does. They capture its business activities and transactions.

What Is a Record? Stereotypes & Misconceptions

• Unified Understanding– A record is a related group of data that is stored in hardcopy

or electronic form– Governed by a comprehensive and actionable policy– Processes may differ in managing hardcopy vs. electronic

but organization and retention are the same– Includes the types of materials described on the previous

slide– There may need to be different categories of records in a

firm (client owned, firm owned…..)

Where Does Records Management Fit?

• Retention is One Component of RM• RM -- Organized Methodology

– Centralized / Decentralized– Taxonomy

• RM – Applied to All Mediums in Legal and Admin Departments– Paper– Electronic– Voice– Websites / Blogs / Tweets

Where Does Records Management Fit?

• Where does Records Management fit within the Firm?

– Part of the Technology function?– Part of Firm Operations?– Part of the Financial function?– Other?

Before You Can Put a Policy in Place Who Should Be Involved

• IT– Inclusion of Electronic Records – retention can be a challenge

• How retention will be managed• Responsibilities

– E-mail Management• Should be addressed as part of the Records policy• Attorney use and acceptance is a key issue

– Addressing Unstructured Data• Network Shares• PSTs• Local Drives

Before You Can Put a Policy in Place Who Should Be Involved

• IT– Enterprise Search– Auto Forwarding– New Devices– Social Networking

• Facebook• Others

Before You Can Put a Policy in Place Who Should Be Involved

• Attorneys, Paralegals, & Secretaries – Across Practice Groups

• GC and/or Risk Management Partner

• New Business Intake

• Accounting

• HR

Before You Can Put a Policy in Place Who Should Be Involved

• Practice Support – the intersection of records management and litigation support is important

• KM– Intranets– Extranets– Search

• Others (i.e. Records Staff)

Issues – Challenges - Areas to Consider

• Getting Management Buy-in

• Governance– Responsibilities

• Overall policy and direction• Day-to-Day

– Ownership– Records to be included & excluded

Issues – Challenges - Areas to Consider

• Practice Groups– Exceptions– International Practice Issues

• UK anti money laundering– Privacy laws

• EU• HIPAA

• Third Parties – Business Associate Agreements

Issues – Challenges - Areas to Consider

• Training and Education– Initial & On-going

• New Staff & Lateral Hires• Partners, Secretaries, Others• Refreshers

• Client Communications– Engagement Letter– Closing/Termination Letter– End of Retention Notification

Litigation HoldsRelease& AuditComplianceNotificationIdentificationLitigation Initiation

• Litigation Initiation— Triggering Events, Case Evaluation, Review and Assignment

• Identification— Scope of Hold: Individuals and Relevant sources of ESI — Communications with IT regarding data sources, systems, & retention

policies• Notification

— Issuance and re-issuance of litigation hold notices• Compliance

— Acknowledgment and adherence to policy— Follow up communications with key players

• Release & Audit— End suspension and resume normal retention policies — Periodic reporting capabilities

Issues – Challenges - Areas to Consider

• Process for Final Disposition– Locate and Identify the Documents that Apply– Partner Notification / Approval– Client notification– Review and Destruction

• Audit and Update Process

Lessons Learned

• Support– High Level Partner as Sponsor– Have Separate Working and Planning Committees– Keep Committees Small with Mix of Attorneys and Support Staff– Include a Project Manager from the beginning

• Develop method to locate and Identify Records• Communication Plan is First Step• Do Not Have Separate Plans for Paper and Electronic • Keep it Simple!!!

Session Handouts

• Don’t forget to review the session handouts

• Bibliography of Records Retention Articles – July 2009

• Issues and Questions to Consider Before Creating a Records Retention Policy

• Summary of Areas to Address in a Records Management Policy

Questions and Discussion

Thank You!