But there's a difference between records and what might have to be produced.
Consider this example: my Daytimer, the old reliable paper, ink, and
highlighter version, is NOT a corporate record for my organization and would
not be one for most of your organizations either (I'm not *that* high in my
organization). My personal Daytimer is not on the retention schedule and
would not be accessible to anyone else in my organization generally, but I
don't think there's any question that in some circumstances it could be
subpoenaed and required to be produced.

Now, I agree that it's not, or not necessarily, or not only, the process of
"declaration" that makes a record a record - however, there has to be some
distinction made with regards to the thought  processes of the organization
as to "keep things like X, get rid of things not like X". X = record,
whether the employees consider it as such or not. All the scraps, drafts,
etc. on my desk as I type this are not records, though they may be used to
create records in the form of deliverables for clients, internal projects,
etc. I could be called upon to produce them if I have them - but they aren't
records.

So here's another distinction for record vs. everything else which may or
may not be producible in discovery: The act of identifying something as a
record denotes a certain need to retain it for some period of time. If there
is no requirement to keep something, I can shred it the instant I'm done
with it. Legally, when the subpoena comes, my legitimate response is, "I
don't have it, I shredded it", and I'm scott free. Now before you bluster
back at me, let me finish my thought. Since that clearly isn't acceptable in
many, many instances, there are certain requirements to keep things for
certain periods. IIRC, the ICRM states them as administrative, fiscal,
legal, and historic; others add other values, but these will do for the
moment.

Now, the subpoena comes in asking for all my documentation relating to a
certain customer for a period of time dating from present to ten years back.
Per my carefully researched, thoroughly documented, expertly applied, and
assiduously followed retention schedule, most of my documentation has been
destroyed when its retention period expired. Under our most common
understanding of the laws that apply to records management, would I be
liable for those things that were destroyed? No.

What about the things that relate to the customer that are not on the
retention schedule - that are drafts, handwritten notes, Post-its? Well,
here's the rub: if I have them, they are discoverable. If I don't, they
aren't. If they aren't on the retention schedule, and I simply toss them in
the shredder every Friday afternoon *because* they aren't, should I be
liable? Again, seems pretty simple - no.

So if your final point is that any information on any media could be a
record, I absolutely agree. If your point is that any information on any
record is by definition a record, then a) it comports at least to some
extent with what Bill M. was asking about earlier but b) at least at present
and for most organizations, that is simply not true.

Regards,

Jesse Wilkins
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blog: http://informata.blogspot.com
Twitter: http://www.twitter.com/jessewilkins

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