Information Management & eDiscovery Practice Group

1. Information Management & eDiscovery Practice Group Grant S. Cowan

2. IMeD Practice Group • FBT IMeD Practice Group • Cross-Departmental • 15 Lawyers • IT personnel • Counsel clients regarding various records management issues, including drafting and reviewing of records retention policies • Assist clients with electronic discovery issues, including document review projects and responding to document requests and subpoenas Grant S. Cowan

3. IMeD Practice Group • ARTHUR ANDERSEN DECISION • Destroying records is not a crime • “‘Document retention policies,’ which are created to keep certain information from getting into the hands of others, including the Government, are common in business.” Grant S. Cowan

4. IMeD Practice Group • ARTHUR ANDERSEN DECISION • “It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Grant S. Cowan

5. IMeD Practice Group • 2005 Electronic Records Management Survey • Surveyed over 2000 records management personnel • 87% said their organization had a formal records management program • 32% evaluated their program as Marginal (11%) or Fair (21%) • 29% follow their retention schedule either Not Regularly (18%) or When Time Permits (11%) • 43% do not include electronic records in their retention schedules • 49% do not have a formal e-mail retention policy • 43% do not have a formal system in place for litigation hold orders • 53% do not include electronic records in their organization’s litigation hold Grant S. Cowan

6. IMeD Practice Group • Why Do You Need A Records Management Program (Or Why Do You Need To Follow Your Records Management Program) • Improved Operational Efficiency • RIM Program documents the Company’s records—records it creates, receives, and uses • RIM Program categorizes and indexes the Company’s records • RIM Program allows the Company to readily access those documents Grant S. Cowan

7. IMeD Practice Group • Why Do You Need A Records Management Program • Consistency in Records Disposition • Companies often have different rules and procedures for records management across business units • RIM Program ensures records are managed in a systematic manner that conforms to the Company’s records information management policy. Grant S. Cowan

8. IMeD Practice Group • Why Do You Need A Records Management Program • Consistency in Records Disposition • A valid RIM Program reduces the chances for inconsistent, reckless, or inappropriate or accidental destruction of information. Grant S. Cowan

9. IMeD Practice Group • Why Do You Need A Records Management Program • Compliance with Legal/Regulatory Requirements • Most organizations are subject to some statutory requirements governing the creation, maintenance, and retention of records. • RIM Program identifies the legal/regulatory requirements and specifies the period of time that records must be maintained. Grant S. Cowan

10. IMeD Practice Group • Why Do You Need A Records Management Program • Compliance with Legal/Regulatory Requirements • Compliance with the RIM Program allows the Company to demonstrate that it manages records in the regular course of business and in accordance with a sound business policy and applicable laws and regulations. • In other words, records were destroyed in accordance with a valid document retention policy Grant S. Cowan

11. IMeD Practice Group • Why Do You Need A Records Management Program • Protection During Litigation/Investigation • Routine records disposal must cease when it is reasonably foreseeable that a formal legal proceeding (litigation or investigation) is pending or may be commenced. • RIM Program ensures that records are properly handled in anticipation of and during litigation or government investigation. Grant S. Cowan

12. IMeD Practice Group • OLD BANC ONE SHAREHOLDER LITIGATION • Plaintiff requested various documents • Bank One unable to produce many of the documents • Bank One did not have a “comprehensive document retention policy” in place • Had an “incomplete” and “non-final” policy in place • Policy had not been widely disseminated to employees nor did the company take steps to ensure that employees read or followed the policy • Took Bank One 10 months to tailor a preservation policy for the litigation • Sanction: Bank One not permitted to cross-examine Plaintiff’s financial expert; jury given an instruction as to why Bank One not permitted to cross-examine the expert Grant S. Cowan

13. IMeD Practice Group • Why Do You Need A Records Management Program • Reduced Space Requirements • RIM Program eliminates storage of duplicate records—only the “official copy” of a record is maintained • RIM Program provides for the systematic appraisal and disposition of the official copy and any other copies of records thereby reducing storage space requirements Grant S. Cowan

14. IMeD Practice Group • Why Do You Need A Records Management Program • Cost Containment • RIM program contains costs by • Minimizing the need to obtain additional filing equipment and/or storage space for paper/microform and tape-based information • Minimizing the need to obtain additional hard drives/diskettes/CDs for electronic information • Ensuring that prime office space is not used for storing inactive records • Controlling the retention and maintenance of duplicate records; and • Controlling the document population, of both electronic and physical files, that might be subject to costly document review and production in legal proceedings. Grant S. Cowan

15. Questions Grant S. Cowan