Part 1: How to build a RIM program that addresses legal discovery before it happens
This two-part white paper presents strategies for better supporting discovery at the proactive and reactive stages. Part 1 outlines six essential steps for integrating discovery requirements directly into your RIM program, including policies, records retention schedules, disposition processes and filing systems. Part 2 will talk about how RIM can help when discovery actually occurs, applying best practices to some of the highest-risk scenarios your organization can face.
Business records are one of the strongest forms of evidence in legal proceedings, as they are both a by-product of and direct contributor to virtually every conceivable action a business engages in. Legal discovery (the act of locating, preserving and making evidence available to all parties of a legal action) is therefore very much focused on the role of records as “documentary evidence”. Here are six steps to help ensure your organization’s RIM practices are ready for any potential legal discovery scenarios.
Step 1. Before you start: Engage legal
Whether you are building a RIM program from scratch or bringing a somewhat dated service into the digital realm, you should pursue all opportunities to directly involve your organization’s legal professionals in the development process.
Step 2. Know your exposures
Given the strong role that RIM can and should play in your organization’s legal compliance and discovery program, it is critical that you gain a thorough understanding of the different statutes, regulations and other legal requirements impacting the organization’s business across different countries, states, provinces and territories.
Analysis should include relevant areas of law, as defined by your organization’s business functions. Depending on what your organization does, these may include laws related to accounting, employment, health, and the environment.
Step 3. Make it your policy
A ‘Records Management Policy’ provides the organizational mandate and overall direction for records creation, retention, handling and disposal. In a discovery situation that same policy is the key to an effective legal defense, providing direct evidence of the organization’s best efforts to manage records in accordance with best practices.
Your policy should make it clear that recordkeeping is a serious legal responsibility affecting all stages of the record life cycle.
Step 4. Develop a records retention schedule
A core principle of any discovery ready RIM program is an effective and well-maintained retention schedule. Some essential strategies for building a discovery-ready retention schedule are to categorize records based on the business functions and activities they support, and to follow all applicable legal retention requirements.
Step 5. Implement a records disposition processes
Records disposition is a formally documented process for reviewing records that have met the end of their records retention period in order to determine if they can be destroyed, deleted or transferred to the custody of an archival institution, where applicable.
From a discovery standpoint, a formal disposition process meets two basic needs: preserving evidence that you are required to produce, and demonstrating the organization’s commitment to meeting all legal requirements for the disposition of records.
Step 6. Know how to find stuff
During a discovery scenario, it is important to be able to find your records in a timely manner, often under intense time pressure. Litigators and investigators don’t discriminate against records based on departmental ownership, storage location or media, so it is vital that you develop a comprehensive classification system that identifies records at the macro and micro levels. Here are some of the key records retrieval tools that you should consider developing or improving:
- organization-wide standards for records classification and labelling that identifies records for business functions and activities
- detailed records taxonomies and metadata indexing
- electronic RIM software to sort, retrieve, track and cross reference files
- full-text search capabilities, allowing discovery teams to automate their review of record content
- Optical Character Recognition (OCR) software for scanned images of paper documents
Once you have developed all of these RIM controls, the job of discovery-friendly RIM can be far from over. Part two of this post looks at strategies for putting core RIM tools to good use, allowing you to protect your organization and increase your own value proposition.