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Record Retention to Manage Risk

Record Retention to Manage Risk. F. Jay Meyer Vice President & Senior Attorney TD Banknorth, N.A. Portland, Maine. Record Management Risks. Inability to Perform Transactions Inability to Enforce or Defend Claims Legal or Regulatory Noncompliance Costs of Storing, Searching and Producing

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Record Retention to Manage Risk

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  1. Record Retention to Manage Risk F. Jay Meyer Vice President & Senior Attorney TD Banknorth, N.A. Portland, Maine

  2. Record Management Risks • Inability to Perform Transactions • Inability to Enforce or Defend Claims • Legal or Regulatory Noncompliance • Costs of Storing, Searching and Producing • Spoliation Penalties Goal: retain as long as needed for operational and legal reasons, then delete.

  3. Record Program Elements • Record Management Policy • Retention Schedule • Administrative Mechanisms

  4. Record Management Policies • Satisfy Legal, Operational Requirements • Non-Selective Retention and Deletion • Holds • Enforcement • E-Mail: all of the above plus • Composition and Addressing • Improper or Illicit Content • Ownership and Monitoring • Archiving Details

  5. Retention Schedule • Arrange by Division or Department • Survey to Identify Broad Categories • Simple Name, Detailed Description • Specify Record Medium • Retention Period and Basis

  6. Retention Periods • Legal Requirements • Tax Records: 7 Years? • Know Your Limitations • Mandatory Periods, Stages (e.g., Rule 17a-4) • Life Plus • Permanent? • Operational Requirements

  7. Administering Record Program • Functions • Labeling • Inventory • Storage and Retrieval • Destruction • Holds • Manual • Automated • Third Party

  8. Deletion • Delete Routinely Under a Policy “It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). • Delete Thoroughly and Non-Selectively • Holds: Suspend Routine Deletion

  9. Holds • When: Anticipated Claim or Investigation • Necessary Steps • Identify and Preserve Relevant Records • Notify and Monitor Affected Individuals • Adjust Routine Archiving and Deletion • Retain Backups • Penalties for Spoliation

  10. Electronic Record Types • E-Mail (Traditional, IM, Text Messaging) • Application Files (Word, Spreadsheet, Database) • Web Content (HTML files) • Images (Photos, Analog and Digital Video) • Phone (Dialing/Billing, Voice Mail, VOIP)

  11. The Challenges of E-Mail • Fast, Convenient and Informal • Easily Copied, Edited and Forwarded • Intangible; Difficult to Track and Manage • Instant Messaging: Difficult to Document

  12. Archiving Electronic Records • Separate the Wheat from the Chaff • Print and File • Electronic • File Type and Location • Server vs. Desktop • Labeling, Dating and Versions • Legal Requirements (e.g., Rule 17a-4) • Don’t Rely on Backups!

  13. Automated Electronic Archiving • Automatic Capture • Automatic Retention • “Dumb” (Uniform Period) • “Smart” (Segregation) • Automatic Deletion • Working vs. Archive Copy • Safe Harbor under F.R.Civ.P. 37 • Holds

  14. ANY QUESTIONS?

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