An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Friday, April 23, 2004
Know Your DRP's Are You Up on Your DRP's?
Document Retention Policies (DRP's), although not the sexiest subject to burst onto the scene along with electronic evidence, electronic filing and e-briefs, is perhaps one of the more critical concerns for the legal professional and their clients. Although the DRP's may languish a bit in the shadows of their more popular colleagues, the DRP can (even more than the documentary evidence with or without its metadata itself) "turn a case."
So, just what is a DRP? A DRP is a rule or standard requiring a person or company or other entity that maintains documents (electronic or otherwise) to "hold on" to those documents for a finite (and in some rare instances, infinite) period of time because in theory such documents may become germane in a future dispute or audit.
Remember when you were encouraged to "hang on" to your automobile maintenance receipts just in case a potential purchaser down the road requested a complete upkeep history? Do you hang on to your tax returns knowing that they may be requested if you later on apply for a home loan? Well, these are common examples of how we are encouraged to engage in our own little DRPs in modern life.
In the world of litigation, however, DRP's are not simply "advisory" - such policies are mandated by statute. Some recent examples of such broadly sweeping statutes include the much publicized Sarbanes-Oxley Act of 2002 (requiring SEC and corporate retention of financial transaction documentation). Perhaps even more well known of late than Sarbanes-Oxley is the Health Insurance Portability and Accountability Act of 1996 (more commonly known as "HIPPA"). This legislation mandates the retention and security of medical and health insurance documentation both in paper and electronic mediums.
DRP's tend to be industry specific. Attorneys are mandated by the Model Rules of Professional Conduct as well as State Statutes (Business and Professions Codes) and also by case law to retain client files for a set period. All of the claim forms, pleadings and settlement correspondence pertaining to your fender bender matters in Wisconsin must be maintained for three years while the will you drafted for your client Ted Testator in Oregon must be maintained forever (or until Ted's demise).
More important than your own retention requirements will be your clients obligations pursuant to a controlling DRP. If your client is a physician facing a med-mal lawsuit, then as counsel you must understand what DRP's control your client's practice. Further, you are also going to need to do some digging to confirm whether or not your client indeed followed such protocols.
If your client is a pack rat like myself, he or she essentially is immune from violating this type of legislation, but if that client is prone to send his or her files to the shredder bin or has an itchy 'delete button' finger, you may need to advise your client to change his or her ways to comply with the DRP in the industry.
By the way, be VERY cautious about advising your clients as to how to be compliant with a DRP. Although you may feel such advise is in the best interest of the client and that without such an education, your client is likely to violate DRP protocols, by rendering this advise - you are exposing yourself it to a malpractice lawsuit if it turns out that your advise is off target. Many large law firms have entire departments that bill for such advise and there are DRP and preventative legal care consultants that make a living dispensing their wisdom on this issue. It may be best if you simply practice law within your specialty and let the experts sell their consulting services and assume the liabilities attached thereto.
Even if you wisely refrain from flexing your DRP muscles in front of your clients, you as a legal professional must still try to stay current with the prevailing DRP's influencing the industry or industries that of your clients.
I am often asked the sixty-four thousand dollar question - "How do I figure out what (if any) DRP's control my client's business practices?" Great question, tough answer.
A search in Google or Lexis on Westlaw (industry news) for "retention policy*" AND (then type your client's industry) will often bear fruit. Also, check the controlling State or Federal Codes. If all else fails, a search within case law (Findlaw.com and LexisOne.com are great free case law search tools) may reference the DRP. You may be surprised to learn that some DRP's are entirely case law created and not an act of Congress or state legislature. Finally, check the umbrella organization that controls your client's industry. The AMA for doctors, for example, which (much like the ABA) have promulgated standards which are expected to be followed in the realm of retention policy.
Today, the majority of American corporations either have no retention policy in place or they have a retention policy that is simply not being followed or enforced. This just spells trouble, I'm talkin' capital, twenty-six point font, bold "T" trouble too... Insist that your client maintain an actively followed, regimented internal DRP which satisfies the requirements of the DRP's in the industry.
One common reaction you may get from your client is: "Wow, we keep so much of our records in digital format, how can I translate that to a DRP?"
Remind your client that the "D" (Document) now legally includes anything that conveys information - paper, digital data (binary code), stone tablets, smoke signals the whole thing... Then assure your client that the electronic storage actually will make life easier for him or her. It is much more cost effective and organizationally optimal to embrace a system that manages electronic data than dealing with boxes and filing cabinets. Anyone savvy enough to be reading this blawg will know that... but you may have to do a bit of convincing to your client. To do so - resource that you may want to reference is the 'litigation readiness' flow chart accessed at www.fiosinc.com/ - this model will help your client 'see the light.'
Once your client has followed your advise and drafted a DRP (ideally with the assistance of an outside consultant or litigation readiness professional), make sure your client creates mechanisms to insure that the policy will indeed be followed. It should be easily accessible in the employee handbook, the intranet and available in print from HR and all levels of management. Further, someone at the client site should be charged with the task of randomly auditing the policy to make sure it is actually being followed. Some measure of punishment such as a fine or demerit or "write up" unfortunately must be instituted to help encourage compliance.
Your client will emerge a more efficient and litigation resistant entity and should the ugly head of litigation surface, you and your client will be in an optimal position to effectively resopnd.
posted by Alexander | 10:38 PM