In Part 1 of this post we discussed the importance of preparing your records for the possibility of discovery in the future. In Part 2 we take this a step further, exploring what to do when legal discovery does occur.
Step 1. Keep RIM teams involved!
As we discussed in Part 1 of this white paper, it is important to maintain a productive working relationship between your organization’s legal and RIM teams. By directly engaging RIM in the discovery process itself, the organization can draw on existing controls to locate all responsive records regardless of their age, format or location.
RIM team involvement can also ensure that in-process or pending records disposition activity is provided for any upcoming legal proceedings, preventing the destruction of records and information that may need to be preserved. This ensures that your legal counsel has the evidence it needs to pursue its case, while at the same time avoiding possible charges that it destroyed or obscured evidence in order to obstruct justice.
Step 2. Prepare legal holds memos
Once RIM has a place at the discovery table, it can advise and support legal counsel in the drafting of a legal hold memo or equivalent document. This fundamental discovery tool advises staff across the organization that legal proceedings are pending and that potentially responsive records and information must be preserved, even if their normal retention requirements have already lapsed.
Determining exactly what constitutes “responsive records and information” is where RIM professionals come in. While it may be tempting to declare a complete moratorium on records disposition of any kind, that may not be feasible in large, multi-facetted organizations. A RIM manager can help cut through the complexity and narrow the functional scope of the legal hold to that which is truly relevant and responsive to the legal hold.
Step 3. Complying with the hold: Stop and take stock
Effective RIM managers should work with legal counsel to create a recordkeeping environment that supports discovery. RIM managers can begin this process by reaching out to all areas of the company, especially those areas due to perform records disposition activity. Announce clearly and explicitly that any records disposition must be placed on hold until their records holdings are reviewed or coordinated by RIM management or legal professionals for potentially responsive material.
Once responsive information has been located and preserved, disposition of non-responsive material can often resume.
Step 4. Get a data room
While production of physical records is still very much a part of discovery, more and more efforts have been focussed on virtual data rooms, which are secure, online repositories that can be accessed remotely by authorized parties.
The creation of a virtual data room can give RIM managers unprecedented opportunity to integrate the essential techniques for organizing, retrieving and safeguarding information.
Step 5. The role of document imaging
The increased use of virtual data rooms and online discovery tools can create challenges to a hybrid RIM environment. This is where document imaging can be useful. By scanning physical documents and creating an electronic copy, you can bring legacy paper into the digital realm. This allows more efficient, comprehensive access to recorded information for all parties in the discovery process.
Step 6. Be accountable
It is not unusual for an organization’s RIM manager to testify or give a disposition explaining the controls that were applied to ensure records were disposed of in a legally compliant manner. Remember that the goal of your records retention and disposition processes are to ensure records are kept for a reasonable amount of time, and then disposed of in a way that can be legally defended should that disposition activity ever be questioned. For the RIM professional, this means the core elements of your program can serve as direct evidence of your organization’s attempt to comply with all legal requirements.
It is therefore crucial that you are ready to produce and defend the following key program components: your records retention schedule, disposition process, disposition sign-offs, and destruction certificates.