Not argumentative at all.  The legal procedure is to produce "documents" in litigation, not merely "records."  If all the lawyers, records managers and business units are all doing their jobs all the time, and people were perfect, "documents" and "records" would be synonymous.  The reality is that they are not synonymous, and the obligation to produce in discovery is broader than "records."  
 
However, discovery documents are not "evidence" until and unless they are admitted as such by the court or tribunal.  The threshold to admit business or government records is lower than it is to admit other documentary evidence.  (In fact, courts can take "judicial notice" of certain government records whereby the substantive content is not only "admitted" into evidence but is presumed true.)  So again, in the perfect world, the goal is to only have the records the business wants and needs in the system.
 
Lets take the US Supreme court decision in the Arthur Anderson case.  Anderson had a policy that audit working papers were to be destroyed once the audit report was finalized.  The working papers are records up until that time.  Once the report was finalized, the report became the record and the papers could be destroyed pursuant to the records retention and destruction policy in place.  If reasonable, appropriate and specific notice was made to preserve the working papers, they retain their attribute as records.  If they need not be retained, but are, it becomes the proverbial "number of angels dancing on a pinhead" whether they are records, but they are certainly documents in possession, custody or control.  Ultimately, Anderson was exonerated, too late.

________________________________

From: Records Management Program on behalf of Peter Kurilecz
Sent: Fri 1/27/2006 1:55 PM
To: [log in to unmask]
Subject: Re: What is a record?



On 1/27/06, Bil Kellermann <[log in to unmask]> wrote:

> At the end of the day, every one of my Requests for Production starts with "Please produce any and all documents in your possession, custody or control that refer or relate to..."  The only documents an entity is reasonably expected to keep in its possession, custody or control are its records...

not trying to be argumentative here, but why use the term "documents"
when an entity is reasonably expected to  produce "records"? This is
where I think the confusion begins.

--
Peter Kurilecz CRM CA
Richmond, Va

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