Hi Sheila-

>
>
> A brief bit of background...We are currently going through our annual
> records retention schedule review.  As it happens, an officer of our
> company came across an article that informed him that deleting an
> electronic file doesn't necessarily mean it is gone for good.  Though it
> is my understanding with regard to e-discovery "good cause" would have to
> be shown before it would be necessary to recover files from slack space,
> he does bring up a good point.


This is correct.  The "good cause" rule is based on how well you are
managing your records in keeping with your retention schedule and policy. If
your retention schedule has been properly researched and the periods
established take into account the legal, regulatory and statutory
requirements (and establish a MINIMUM retention period that satisfies the
MAXIMUM requirement) plus any business needs that exceed those, you're
covered.  PROVIDING, that is, you are following the retention periods and
can demonstrate that you don't make decisions to occasionally exceed the
retention periods for some records without documenting why, and naturally,
that you never dispose of records prior to their scheduled retention.

Seldom will a Court require the costly production of deleted information, or
approve forensic searching for information unless there is a hint of willful
spoliation of evidence.  This is exactly why the revisions to the FRCP were
made last December.

  It is great to have a Records Retention
> Schedule, but what does it really mean if the files are still out there?


And this is s key point.  If the files are stil out there becasue they
weren't destroyed by normal means, then it's an issue.  If the files are
"still out there" and require extreme means to locate, then thee has to be
just cause to require them to be produced.  If you have published policies
that state backup tapes are generated SOLELY for the purpose of
reinitializing systems once there has bee data lost "in the course of
normals business" or "following a business interruption or disaster" ad that
they are not routinely used to search for information that was deleted to
use for other purposes, you're covered.  If you use backup tapes as an
archive and deep search for information in them, then they you could be
required to produce them.  This is why IT procedures have to mirror RM
policy when it comes to managing backup tapes.  If it says they are created
as redundant datasets and used to restore systems only in the case of
emergencies, and they are overwritten o a regular basis, it's uncommon for
them to be called into evidence.

I have been asked to explore e-shredding programs.  I know there are many
> out there including freeware. My questions for you all:


Whatever the program, be cautious of using "freeware" in a business
situation, even if you're  a"company of one".  You seldom get any
documentation of the applications and it's difficult to find out how they do
what they do.  If you want to use a utility to perform a specific function
for business, make sure it's a supported application.

Does anyone have experience with these programs? If so, what would you
> recommend?  Has anyone deployed such a program enterprise- or agency-
> wide?  Thoughts, comments, recommendations would be greatly appreciated.


Any time you decide to use technology to implement a process, make sure you
document in your policy and/or at minimum your procedures what the purpose
of its use is and how it is used.  Make sure it can survive an audit and
validate that is exactly what its being used for and nothing else, and that
you use it routinely as stated.  And if you're going to use something like
this, make sure it IS used enterprise wide and not selectively.  Selective
clean wiping of data indicates a desire to effectively eliminate SOME
information and casually eliminate other information, which could send up a
red flag and cause concern about inconsistent application of business
practices.

Larry

-- 
Larry Medina
Danville, CA
RIM Professional since 1972

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