Producing electronically stored information from your electronic records management system

by on July 8, 2009 · 0 Comment POSTED IN: HR Info Center

Your electronic records management system is a major component of both your legal compliance and possible lawsuit defense plans

There are some ways that we can get around producing information from your electronic record management system. Basically, trying to say that it’s not reasonably accessible is not advisable. The standard for showing that documents aren’t reasonably accessible is going to be very, very difficult.

Attorney-client privilege in electronic records management
There are some protections to attorney-client privilege in here. You can just imagine that with the large volume of email that’s sitting on your servers right now, if you’re ordered to grant access to those servers to a party or to someone in litigation, it’s probably going to turn up some privileged information. So the rules have recognized that and said that you can kind of claw back that information that may be privileged. With interrogatories and document requests, you have to produce electronic information. Under Federal Rules of Civil Procedure Rule 37, the sanctions rule still applies. This brings us around to the issue of why exactly it is so essential and so important to have an electronic records management program in place.

Electronic records management programs prevent “spoliation of evidence”

There is a doctrine in the law called “spoliation of evidence”, which is a pretty simple concept that means once you know a document is going to be important to a particular piece of litigation or to a particular dispute, there doesn’t even have to be a case filed, but once you know it’s going to be important to this dispute, you have a duty to keep it.

And as the lawyer, I have a duty to make sure and take reasonable steps to make sure that all relevant information are kept. Because if I don’t and if you don’t and an important document gets destroyed after we know that there is a dispute, then I may be subject to sanctions.

There are all sorts of sanctions that can come along and to as far as defaulting you on a lawsuit, dismissing your case, an adverse inference- which means that the judge can instruct the jury to assume that the documents that were destroyed would have been harmful to your position. Those are very powerful tools and very powerful weapons that a court has to punish the destruction of documents.

Why is the electronic records management plan necessary in that situation?

Because we can go to the judge and we can say, “Look your honor, we have a document retention policy and a electronic records management plan. Here it is. You can see a copy of it. You can see that under our document retention policy that we were going to destroy this particular document two years after it was made. The law required us to keep it at least that long. We kept it as long as the law required. And under our document retention protocols, all of these documents are destroyed and all of the other documents like it were destroyed.”

In that case, you have a much better chance of avoiding sanctions or some other adverse consequence from your destruction of the document than if you were doing everything by the seat of your pants.

The document retention policy in addition to helping you running your business also provides you with a very important legal compliance and a very important legal defense in the event that you find yourself in this position in litigation.

Edited remarks from the Rapid Learning Institute webinar: “Personnel Document Retention: What to Keep, How to Keep it & Why it Matters” by Matthew Gilley Esq.

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