Dear Colleagues:

My opinion only. I'm not a lawyer and I don't play one on TV, but I spend a lot of time with General Counsels of Fortune 500 companies these days.

This problem is actually a confusion. For litigation purposes, how a company or a jurisdiction defines a record is irrelevant. The rules of evidence do not focus on "records," but on "documents" and other related materials. Drafts, post-it notes, emails harrassing other employees are all examples of things that are fair game for a litigation subpoena. The fact that the "documents" are not "records" is of no consequence to the case, unless this is a part of the equation that makes up the case.

I remember speaking to a woman who had been an administrative assistant while IBM was going through its antitrust case. She told me that she had a box under her desk where every document went, regardless of its status within the corporation. This included notes written on notepads. The only thing that went in the trash was food waste.

That records are "evidence" of anything has been introduced to us by the archivists who are interested in evidence of how an organization made its decisions. As records managers dealing with live information, even if it is in storage, we are interested in how an organization works so we can help it make better decisions. This difference in focus is a grand distinction. However, even if an archive receives a litigation subpoena, it doesn't matter what the archivist thinks the documents do (whether they are evidence or not), the documents get turned over.

When we say we are records managers, do we manage documents or do we manage records? Well, if a document is ever to become a record as the archivists define it, it has to be managed properly. To make certain our email systems are not clogged with FYI's and jokes, don't we need to create rules for deleting them? Isn't the retention for pornography zero?

When I help organizations, I tell them that for nearly all of what they want to accomplish the distinction among content/document/record is a false distinction because it will lead you down a path that will ultimately prove fatal--if all you manage are records, you will leave either a lovely trail of breadcrumbs to the source of the problem, or you will leave a nuisance (like 40,000 emails in someone's inbox--no lie).

Robek, Maedke and Brown define records as "recorded information, regardless of medium." That book is my bible and that definition is my credo. 

Best wishes,
Carol

Carol E.B. Choksy, Ph.D., CRM
CEO
IRAD Strategic Consulting, Inc.
(317)294-8329

Adjunct Professor
School of Library and Information Science
Indiana University, Bloomington

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