There are a number of sources that I've seen used. There are some
boilerplate retention schedules that seem to float around the legal
business that you see sometimes. I suppose they pick them up at CLE
sessions or someplace like that. These are generally of the cheap and
cheerful, very simple sort. The Federal Energy Regulatory Commission
schedule and 18 CFR part 125 and the NARUC schedule seem to be popular
sources as well. I've seen these ones show up in some really
inappropriate places, plant ledgers and plant retirement records series
included, even when the company had no plants. Other than that, they get
them where they can. I've had my own work presented to me as having been
created by somebody else.
You're right, your average lawyer doesn't seem to know much about the
records management aspect of it, that's why they crib schedules from
other places when they get a chance, and that's why they'll use
something like the NARUC schedule pretty much verbatim. They don't
realize that much of the material in it is very specific to power
plants, and don't know enough about power plants to cull that part of it
out.
The citation to legal authority is pretty skimpy for a couple of
reasons. First, the folks that are doing legal research, be they lawyers
or paralegals, are probably doing this kind of research for the first
time. That means they don't really have any idea where to find this
stuff, so they are at the front end of their learning curve, and it
shows. You generally find a fair bit of irrelevant material, because
people were too new at it to make sound judgments as to its relevance,
and you don't find it used very well. Like the research itself, the
mapping is an exercise that takes practice to get good at. Second, the
average lawyer taking a first crack at this kind of research has vastly
underestimated the volume of law involved and the time it's going to
take them to look through all of that law. So what they thought would be
a relatively simple and straightforward task turns into a massive
research project. If they are inside counsel, they tend to cut it off
short because they haven't got the time. If they're outside counsel,
they cut it off short because the client is unwilling to pay the bill
for a couple of thousand hours or more of research at lawyer rates,
which is what the bill would wind up being for the first time assembly
of the legal authority listing for a large, complex retention schedule.
So the whole research process tends to get cut pretty short. And since
they're unfamiliar with this industry, they don't use the
subject-specific databases that are out there. Lawyers are familiar with
Westlaw and Lexis, and if you type in the word "record" in either of
those using a full nationwide search of statutes and regulations, you'll
get a hit list that will keep you busy for the next 10 years reading
through vast lists of citations, almost all of which are irrelevant.
That scares off amateurs pretty quickly. And when that happens, you see
some of the things that Julie mentioned, because of the absence of a
good body of research the lawyer in question takes a guess, and he being
a lawyer, it's a conservative guess. So you see lots of "permanent"
retention periods and that sort of thing.
As far as some of the other things actually mentioned, I would agree. I
think they're a function of basically the same lack of familiarity with
the records and information discipline, and an underestimation of the
complexity and difficulty of the task. So you see policies and
procedures that are full of boilerplate legalese jargon, or basically
undoable in real life, because the lawyer in question got them, or at
least the idea from them, at a CLE seminar someplace, or out of a legal
form book, and doesn't know enough about practical information
governance to really have a good grasp on what might or might not be
wrong with them, or what practical issues might arise out of attempting
to apply the policy as written. Likewise, excessive granularity comes
from the fact that they got a record listing someplace, and not being
familiar with the principles of information management, don't know how
to take that and turn it into meaningful record series. And of
course, jargon--wise, you can always spot a policy written by a lawyer
because it talks a lot about "documents", and it refers to the records
retention schedule as the "document retention policy". For some reason
they are very resistant to learning the professional lingo of the RIM biz.
Julie is also right, there are some lawyers who do a pretty good job,
because they've taken the trouble - and had the time - to get themselves
up to speed, and learn about this business. So this isn't intended as a
criticism of the ones were taking their first stab at it. If someone
told me to go out and write up all the legal documentation needed for an
IPO or a municipal bond offering, my first few attempts probably
wouldn't be very good either, and every criticism that you've seen in
this email could undoubtedly be leveled at me. And I would certainly be
cribbing everything I could find from CLE sessions, form books and
anywhere else I thought I might get some help. So we probably shouldn't
be too hard on these lawyers -- they're somebody who's been put in the
unenviable position of having to take on a very complex, high-stakes
task with no prior training or experience, pretty much like everybody
else in this business.
John Phillips wrote:
> John,
>
> Just out of curiosity - when a "typical lawyer" (Inside/Outside Counsel)
> tells their management/client that they have created a retention schedule,
> what sources/processes do you think they used? I often hear Corporate
> Counsels in small organizations say the "did" the retention schedule
> themselves, when they often seem marginally informed about records
> management in general. I doubt any of them used Retention or Retention
> Manager software, for instance.
>
>
--
Best regards,
John
John Montaņa
Montaņa & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
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