An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - 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
Sunday, April 18, 2004
Back in the Saddle Back in the Saddle
Julia Wotipka who is the force behind Alextronic... my Don King yet without the spikey hair (otherwise the resemblance is pretty stunning) lamented the other day...
"Alex, your daily Blawg has turned into a weekly Blawg... what gives?"
Ugghhhhh. I sied. I thought that reaction said it all. Don... I mean Julia didn't seem to let me off the hook so easily.
"You need to publish a bit more frequently Alex... your fans want your art."
Julia offered to send me a box of chocolates to jump start my creative juices and keep me up later at nights pontificating my next move in Bloggerville. The sweets were intended to make vision of .pdfs and .nsf's dance in my head.
I promised Julia that the chocolates just may do the trick... but, tragically, the chocolates never arrived and I remained hunched over my laptop pulling at my hair. Had the chocolates arrived, Blawgs would have been spilling out of this site in a manner that would make the late Henry Ford envious. I also would have refrained from claiming that Julia looks like Don King and would have referenced the more appropriate (and accurate) celebrity look alike - Wynona Ryder... but no chocolates mean unflattering Don King comparisons... Got that, Julia? I prefer Cadbury or Hersheys.
Julia called again... "Hey, so, where is our Blawg entry...".
Lacking my fix of cocoa - I had one word for her. Well, make it two words: Writer's Block.
Hey, the subject of this Blawg is not Christina Aguillera's hair color. The industry is fast paced... but does it merit daily reporting? I was beginning to think not. I just didn't know what the heck to write about. Another on de-duplication? No, I could not subject my reader base to that. An ode to the document retention policy? We're not ready for that yet. A pre-processing filter query haiku? That's still a work in progress.
That was, of course, until Glasser Legal Works rolled around. The SF Glasser show which rappe dup last week was nothing short of an infusion of ideas. I felt as if I was strapped to a guerney and the ED intravenous tube was plugged into my arm.
The Glasser show is, for me, a reunion. A chance to catch up with my clients, co-workers, former-co-workers as well as fellow practicing attorneys. Harold Spar who went toe-to-toe with me in court last week stopped in front of the Fios booth, dropped his jaw as he glanced the company logo strewn across my chest and exclaimed... "What the hell are you doing in some booth?"
The Glasser show is also a bit like a rock concert in that I can catch a rare glimpse of the ED and legal tech rock stars whose words I read, sites I visit and lectures I absorb - I'm talking about legendary luminaries such as Ross Kodner, Geroge Socha, Chris Greene, Judge Richard Best, Judge James Rosenbaum (I had the true privilege of speaking on a panel with these two judges and I have not yet come back down from the euphoria), Peter Krakaur, Tom O'Connor, Browning Marean, John Tredennick and other notables. When I was invited to have lunch with Judge Rosenbaum and later invited to breakfast by Judge Best, I felt as if I were thrust back to 1979 and approached by Gene Simmons and Ace Frehely... imploring me to join them on the tour bus to complete the Kiss Dynasty tour... OK, wake up Alex... wake up... time to go to school...
So now that Lynn and Steve Glasser and the folks at Findlaw have managed to reinvigorate and motivate (even without the aid of chocolates) I don't even know where to start as far as new blawg material is concerned.
Every time I think I got this ED thing down, I am proven drastically mistaken when I sit in on the Glasser workshops. I learned so much that a daily blawg is now doable (no promises without Ms. Godiva present, Julia).
One of many topics debated at the show was brought up at the keynote luncheon by Judge Rosenbaum (perhaps one of the most thought provoking and entertaining speakers I have ever been exposed to) who inquired to a panel of ED experts... "Who authors metada? Can Metadata be privileged or hearsay if the declarant is not a person?"
Think about that one. Who is the "declarant" of metadata? Is it a person or a machine?
If the metadata is machine made, do the same rules attach to human-being made communication?
On one hand, the metadata is clearly machine made as the author of the e-mail message, word processing document or spreadsheet does not directly input the data that appears underneath the hood. The computer notes the creation date, number of modifications, last saved time etc... .
On the other hand, without the human being there would be no metadata.
The old chicken or the egg... .
I can't quite figure this one out. I tend to analogize the metadata as the post date stamp. The human being writes the postcard and as a necessary step of the mailing process, the post office applies a post date stamp. Did the author of the post card personally place the post date stamp on its cover? No. Can the post date be relevant and possibly even turn a question of law or fact? Absolutely. Is it a declaration? Yep. Is it a declaration by a human being and thus subject to so many restrictions and rules associated with admissibility of evidence? Not sure...
This debate could be endless... I'd continue but I am beginning to feel a bit fatigued at this point. If I only had that chocolate... posted by Alexander | 8:51 PM