eDiscovery and Records Management, a Perfect Storm?

By Mark Mandel posted 09-02-2011 12:09


I have internalized a concept about Records Management and eDiscovery for several years, but it has been made evident to me from working on recent projects that this view of the world of RM is not universally shared.

Because of the changes to the Federal Rules of Civil Procedure some years back, Electronically Stored Information (ESI) is now discoverable in court cases, regardless of whether it is being treated as an official business record of the organization.  So, rather than having RM become an afterthought it needs to effectively deal with as much of the ESI landscape as possible. 

The ultimate objective is to accomplish these critical functions:

  1. Effectively classify and categorize ESI so that eDiscovery is less costly, less resource intensive, and more complete.
  2. Provide mechanisms to search for relevant ESI and place it on litigation hold, culling it to package all that is required for court cases.
  3. Provide mechanisms to destroy ESI according to published retention policy, in a manner that will stand up in court.
  4. Accomplish all of this in the most effective and efficient manner, with the least impact on end users.
  5. Do this while at the same time addressing IT needs to ensure optimum performance of production systems such as Email, document management and tracking systems, and reducing the storage footprint for electronic and physical records.

This means that RM records schedules should expand to encompass all electronic records throughout their lifecycle. In practical terms, this means adding one or more “Transitory” records series to your records schedule, and capturing record metadata as soon as ESI is created or ingested by having a seamless, integrated document management and records management system, deployed at an enterprise level.

All too often I see RM treated as a kind of stand-alone repository, where documents are “declared” as records to be managed only through their final disposition periods.  In this paradigm, which includes electronic documents, email, and many other types of electronic content, only a small percentage of the overall ESI in an organization is addressed.  So when it comes time to perform discovery for a litigation, users must search many different repositories outside the RM infrastructure, making discovery very costly and inefficient.  And there is no mechanism to purge the transitory information in a defensible manner since it is not governed by the RM system that contains those mechanisms.

The ideal solution is one where you have an enterprise library that stores all content throughout its lifecycle, managing capture, storage, use through multiple versions, final publication, and event, calendar, or role-based disposition and archiving.  This includes drafts, non-business content, email, instant messages, and so on.  Those items that are considered transitory or non-business are classified as such and are purged according to the retention rules.  All policies are governed by a single records management ruleset. 

This is the approach I have been working towards for several years.  Getting to this ideal is not easy, given the IT landscape and legacy at every organization, including rampant use of file shares, PST files, flash drives, laptops, multiple ECM repositories, multiple email systems and archiving solutions, various eDiscovery tools, and so on.  Therefore in a pragmatic sense you must make compromises in the short term while moving towards a long term strategy that meets organizational objectives.  However, you should recognize where you are making compromises and where your short term gotchas are.

I am interested in your feedback about this approach and whether you agree that it is the right one, and any assessment you might have about whether current ECM and eDiscovery products are positioned to meet this goal.

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