>Our computer tech committee decided that the best practice is to print
>out "important" e-mails and file. Our attorney has been directed to write
>a policy on this premise.

Decided to wait a couple of days to weigh in with my comments on this
message.  If your attorney "has been directed" to do this, then that
obvioulsy means someone (presumably) higher up on the food chain has
decided they are willing to accept rsponsibility for this, irrespective of
their knowledge of the liability of their actions. Therefore, the attorney
has no concerns and will likely follw their directions.

If the higher-up is acting on the advice of the tech committee, then
eventually, they may determine that they should involve their records
maanger or legal counsel PRIOR to giving direction of this type in the
future.

>I will suggest to our attorney to include language that the records need
>to be identified and filed by topic/relative nature following the
>retention schedule.

I'm not sure that I'd want to personaly provide any input to what the legal
position is that's provided, because your name/position title may come up
in the future when this decision is questioned.

>My first question to the list is as "records custodian" what liability
>would I personally have due to this policy if we're directed by a court to
>submit electronic records that we don't have?

Well, as is frequently pointed out by others who provide comments here,
this isn't legal advice, because I'm not an attorney, I don't even play one
on TV and NO... I didn't sleep at a Holiday Inn last night =)

You're an employee carrying out the duties in your position description and
your actions should be limited to what you are told to do and liable for
within the scope of your job.  You can offer advice based on what you know
or have heard from others, but you should not be held personally liable for
anything you do, as you are only doing wat your employer has directed you
to do as a part of your job.

>Our city has decided that they're willing to accept the risk of not
>keeping electronic information past the length of the backup tape recycle
>time.

My personal opinion is this is a GREAT RISK they are willing to accept. If
they are ever subject to an eveidence production order and they have
knowingly destroyed a form or format of evidence earlier than another form
that they were routinely maintaining, they may be required to expend
substantial amounts of money to re-generate that information from the
backup tapes that they have elected to retain and have admitted to having.
If the opposing party desires to have the information delivered in
electronic format and the only electronic form it's available in is backup
tapes, then they may be required by the court to mount these tapes, re-
initialize them into usable form and produce them.

This is based on opinions provided by two active district court judges and
one retired one at a conference I attended last week, and it's based on
current Federal rules aof evidence and a few that are curently proposed and
still remain open for comment.

>I've forwarded the list's information regarding the e-mail best practices
>thread of a week or so ago to the city administrator, city attorney and
>technology person in hopes of enlightening them.

Best practices are one thing; laws of evidence are another. If they're
willing to buck these, then they better be willing to expend a lot of money
and time producing evidence if they have policies that are ststing that
they will be destroying electronic forms of infoamtion prior to destroyingh
the backup tapes and they have elected to retain a physical form instead.

>They perceive me as chicken little, proclaiming "the sky is falling in".
>Perhaps they don't perceive the risk or they are willing to assume the
>risk.  I had a risk/benefit conversation with my immediate supervior, the
>city administrator and he told me that e-discovery isn't relative to our
>city.

I think you're right in assuming if your supervisor has instructed you that
they aren't subject to e-discovery they are willing to assume the risk.
And no, you're not chicken little, but you're also not personally at
risk... but if I WERE YOU, I would document what advice you provided and
keep a copy in your personal file.

>My second question: Am I really chicken little?  I'm thinking the city is
>not exempt from lawsuits or a discovery order. In fact, we do have a
>lawsuit brewing relating to a land deal.

I found this to be the most critical aspect of the information you've
provided in this message.  From what we were told last week, once you know
litigation is PROBABLE, counsel is to inform the organization of their duty
to preserve information and the penalties for failure to do so, and that
this applies equally to electronic, as well as physical forms of
information.

>Fortunately, I've not any e-mails regarding this other than some records
>requests for minutes of meetings, which requests are transitory in nature
>and not kept.

Well, yeah... but... if litigation is PROBABALE and the minutes discuss any
aspects of trhe probable litigation, then transitory or not, you should
have been told to preserve them.  However, if you weren't, then you're just
doing your job and you're under no obligation to do anything... but like I
said, I'm not the attorney. =)

Larry

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance