Records Management Drawn and Quartered

Records management is in constant flux. Litigation, like the ownership of email, and new technologies, like PSS Systems, continue to mold the way records are understood. Sarbanes Oxley did look to normalize a lot of what a company is required to keep but even this changes as litigation looks to rewrite the rules.

No matter what anyone says, records management is an art not a science. It is an interpretation of how each companies sees its information and what drives those decisions. One can only truly understand records management by understand the pressures on it.

Two Pressures
Records management can clearly be defined with two axis; internal versus external pressures, keep versus destroy. Each instance seems to start at one pair of extremes or another. But ultimately an efficient records management program will find a middle ground.

Pressures on Records Management

Before SOx drove everyone to records management, the biggest driving force was litigation. If you could find a company that lost a case due to either not having a document readily available or lost a case because some document had appeared. In either case, the company was ready to react to a need for records management.

Today those pressures more often are driven by who was put in charge of the SOx initiative. Is it the auditors that want to keep everything or the legal department that want to limit exposure. Here the decisions are longer but still are driven by one end or the other.

The first think to remember is that every content object that exists is a records. The real question is does it need to be. I will attempt to look at the four major pressures individually.

Litigation Missing Documents
While many a company has tried, too often if a document can be shown to have existed and it’s material then it can be requested in discovery.  The lack of access to document has hurt both plaintiffs and defendants.  But the end result is very common, an initiative to keep every document ever produced.

This often drives from the fact that the case was lost and the immediate response by the party missing the document is that “if only we had it”.  To often the validity of the needed document is ever questioned.  For example, are work products real documents or just the final documents?  To often this is ignored in the process of creating a records system.

Litigation Discovered Documents
This is at the other end of the spectrum and usually starts when a document that some employee or customer happened to keep suddenly appears in court.  Often these are tied to “whistle blower” cases.  The sudden appearance often drives companies to look to remove as many documents as they can that are not material.

Again this is driven from an immediate response to a case that’s typically highly visible.  Here often the source of the document is never brought into question or its validity.  For example, was the document a draft or final copy?  This often ties into the company’s inability to produce the document themselves as a check.

Auditors Just In Case Keep Everything
The other end of the urgency or reactive nature of litigation, is the proactive process of creating a records policy.  The general issues are the same yet less timely but the project can easily be fast tracked if a legal situation were to emerge.

The first of these two sides is usually driven from the mind set that everything the company has ever created has value and must be kept forever.  While a great idea the costs of keeping everything forever will become high.  This option is especially favored by storage vendors who see this as an opportunity to sell lots of disk space.  The question is do you really need to keep everything, no.

Legal Keep Only What Is Necessary
At the other end is keeping only that which is required by law.  Yes, this is truly what is required and therefore would be accurate.  But it does not take into consideration any possible value of keeping things that could be of value later, like incomplete research projects.  Keeping only that required by law really cuts into the value of the company’s intellectual property.

Common Ground
A good records policy finds a common ground between keep everything and destroy everything.  Most policies do start from one of those four points and over the years they move to a point much closer to the center.  And that is where reality lies.  Any solution that tries to portray one strategy as more correct than another is wrong. 

A records policy needs to ensure that everything required by law is kept as long as is required.  It should also use a review committee of company subject matter experts to decide which additional information may have value in the future.  But most important is that a good records policy gets the garbage out, too much information is kept just in case.  If it didn’t cost a lot to develop, let it go.

In closing it’s all about good corporate citizenship.  Yes even good companies get called on litigation or compliance issues.  But in the end odds are the cafeteria’s apple pie recipe will never be up for discovery in court, but the email on world domination probably will.

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