Electronic Records Management: A New Understanding of Policy, Compliance, and Discovery

2. Electronic Records Management: A New Understanding of Policy, Compliance, and Discovery Robert J. Sobie, Ph.D. Director Information Systems Department Eaton County October 2007

3. Purpose • To improve our understanding of any deficiencies with our current electronic records management policies and practices. • To improve our understanding of the requirements for electronic discovery of records. • Federal Rules of Civil Procedure were amended in 2006. The amendments address the treatment of electronically stored information (ESI) during discovery. • To establish a collaborative framework (i.e. committee of stakeholders) for successful design, implementation, and administration of electronic records management.

4. Electronic Records Retention and Litigation (e-Discovery) • E-Discovery is the process in which electronic data is sought, located, secured, and searched, with the intent of using it as evidence in a civil or criminal legal case. (Preimesberger, 2007) • The medium used to document official government activity is irrelevant. • The content of the activity determines if it is an official government transaction, action, or activity. (Anonymous, accessed on 7/24/2007: http://www.mnhs.org)

5. HAL’s Classification of Records • Official Records (must follow general or agency-specific retention schedule). • Transitory Records (recommend retention for a maximum of 30 days). • Non-Records (recommend immediate destruction). • Personal Records( don’t use government assets to create them).

6. Electronic Records Retention and Litigation (e-Discovery) • Managing a discovery request must begin before a request is made. Even if your agency never receives a request, preparation remains critical. • Policy, procedures, systems, staff training, and supporting plans must be collaboratively developed by a diverse group of stakeholders to adequately respond to a discovery request. (Schwarz and Wetmore, 2005)

7. Policy Process

8. Electronic Records Mgmt Committee • Consists of stakeholders representing the diversity of business functions that permeate the organization. • Reaffirm with all members that this is a document management, not IT, committee. Retention, accessibility, security, and destruction must not be viewed solely as a technical issue. This would undermine the importance of overall records management requirements.

9. Committee Structure

10. Research and Consultation • Many governments, particularly at the local level, do not have in-house expertise to conduct research and evaluate the impact electronic records retention and litigation can have on the organization. • Need to identify appropriate resources to perform, or assist with, suitable research and review of statutory mandates and case law.

11. Inventory Records Mgmt Assets • Do we know: • What technologies we have? • Who is using them? • How and where records are stored? • On what media records are store? • A pre-discovery meeting must identify storage assets and ability to restore files for discovery (Semsroth v Wichita, 2006). • Critical IT assets (servers, hosts, SANs) are known, but with the proliferation of peripheral storage devices, compliance with retention/destruction/hold policies is anything but certain.

12. Electronic Records Management Strategic Plan • Define goals. • Define action steps to achieve each goal. • Define timelines suitable for each action step. • Include an evaluation requirement to inform stakeholders of compliance progress and allow appropriate plan revision when necessary.

13. Formalize Electronic Records Policy • A “new” formalized policy of records management must be the first action item described and acted upon, in the strategic plan. • A draft, based on a HAL template and current county policy is pending. • Submit appropriate resolution and seek approval (i.e. board, council, etc.). • Disseminate the policy to departments, divisions, branches of government and their respective employees. • Provide suitable training to inform staff.

14. A Process of Evaluation • How do you know if your electronic records management strategic plan is effective? • Evaluate it! • Using previously defined metrics. • You can use sampling strategies to search for actual records based on government transactions and actions. Annually target pre-determined transactions (i.e. budget discussions, IT purchases, etc.). • Periodic surveys and interviews. Include training within the new employee orientation program administered by the Personnel Office.

15. Mock e-Discovery • Test the county’s readiness for e-discovery. • Predetermined: • Parties • Theme: Internal Promotion • Disclaimer/Authorization • Keywords or phrases