Some thoughts on this thread by a litigation attorney that makes litigation support software that has to connect into records management systems, among other things.  Having a debate about the definition of a record that includes lawyers, records professionals for companies and records managers for government agencies is like playing soccer with an American (or even an Aussie rules) football.  Things get, well, squishy.
 
In the context of this thread, one definition proffered equates a record with evidence.  A record is not per se evidence in a purely legal sense.  Documents admitted into evidence are not per se records, until they become part of the record of the case.  In fact, nothing is evidence unless and until a party or her attorney submits, and a judge accepts that material into evidence.  However, materials that an entity desires to keep, to prove its activities or existence, are records, and in a lesser or semantic sense, evidence.  I think this is the crux of what my colleague tried to express however inartfully.
 
Let's look at a couple of examples:  By law an employer is required to keep time records to prove the correct amount of wages it is obligated to pay per-hour employees.  On the one hand, an employer wants to do this to be fair and to retain its employees.  On the other hand, state law requires that the employer does something along these lines in any event.  If I institute a time card system and require employees to use it, punishing those who abuse it in some way, I can declare that the time cards are my records, and my only records, of the employee's time on the job.  If an employee walks in with a handwritten note, kept on the job by the employee as she does her work, put into someone's file in the office, that records her time, even as something different than the time card, I can disclaim that document as a record.  Absent any other evidence, via records or not, the judge will likely rule the time card is the record and the handwritten note is not, because I, as the business say so and have made all reasonable attempts to make it so.  Nevertheless, the judge may admit both into evidence.  The former may come in via the business records exception to the hearsay rule by mere proffer of the custodian of records of the employer.  The latter must be authenticated by the author or a recipient, pass unscathed through any number of evidentiary objections, or may ultimately come in as rebuttal evidence to challenge some other proffer.  Then after all that, the business proffers another record, its card key security log of the comings and goings of the employee, to undermine the veracity of the handwritten note.  The trier-of-fact wades through it all and ultimately decides what the truth really is.
 
If in support of a preservation hold, you peruse the ERM, RM, RIM or some other EIEIO system and find porn on the system.  Is that a record?  Does it become a record if the claim is a sexual harassment claim?  If there are stringent policies, procedures and actual enforcement that works hard to keep porn out of the system but this is the 2% that slipped by, is it still a record, even in the sexual harassment case?  Even if it is not a record by all stretches of the imagination, it may still be evidence, may still be admitted into evidence in the case and may be probative of the issues in the case.  However, unless the business is in adult entertainment, most records managers would agree that it is not a record, does not belong on the system and we should all work to keep it off our systems.
 
Ultimately, and rightly or wrongly, an entity decides that which it desires to keep as a record.  Rightly, it does so in line with all its legal, financial, successful business and archival requirements and even socially conscious principles or values.  Wrongly, if an entity fails to define, support, fund or otherwise maintain its records policies, procedures and practices it ends up with a record that evidences that failure.
 
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...
 
William Kellermann, Esq.
Director, Corporate Legal Systems
CT Summation
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www.ctsummation.com
 
CT Summation 
425 Market Street, 7th Floor
San Francisco, CA 94105
Phone: 415-442-0404 
Fax: 415-442-0403
Technical Support: 800-786-2778
 

________________________________

From: Records Management Program on behalf of Roach, Bill J.
Sent: Fri 1/27/2006 3:43 AM
To: [log in to unmask]
Subject: [Medium Prob SPAM] Re: What is a record?



>>One of the attorneys posited that a business record is what the
company says is a record ... that a company can unilaterally say that
XYZ is not a record (or is a non-record, or a transitory record), and
therefore has no obligation to retain. Does this fly from a litigation
standpoint?<<

Attorneys like the one mentioned are the reason my brother (an attorney)
always insists on adding the note about competent counsel rather than
just counsel.  His disclaimer goes something like this:  The information
provided here is not legal advice and should not be construed as such.
Please seek the advice of a competent attorney.

Passing the Bar doesn't make you competent in areas you know nothing
about.  With respect to records, I would suggest seeking this attorney's
advice in records areas would be like asking a proctologist for help
with my sore throat.  He may provide a solution, I just am not sure I
would drink it.

Bill R

Bill Roach, CRM
Enterprise EDMS Coordinator
State of North Dakota
ITD/Records Management
701-328-3589

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