Dear Everyone,

One of the elements of this conversation is whether captured information is
a record or not. Civil Procedure makes no distinction concerning whether
information is a record or not for purposes of discovery or trial. That is
one of the reasons the term ESI (electronically stored information) was
created. Lync is clearly electronically stored information. With all due
respect to my esteemed colleagues, record/no-record is irrelevant for
litigation discovery. If a reasonable expectation of litigation arose that
included anything in Lync, the duty to preserve arises for that information.

Further, there are regulations regarding broker/dealers that would require
all Lync communications to be retained for three or six years, simply
because it is broker/dealers who are communicating.

I advise my clients to avoid worrying about whether information is a record
or not and just worry about managing it appropriately. In Earl's company it
sounds like Lync has replaced email as a preferred form of communication.
Email needs to be managed and so does Lync and that management must include
plans for how to perform a legal hold on that information. Transitory
information in electronic form is still ESI and subject to discovery.

Best wishes for a great holiday season!

Carol E.B. Choksy, PhD CRM PMP
CEO
IRAD Strategic Consulting, Inc.
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317-294-8329

Adjunct Lecturer
School of Library and Information Science
Indiana University, Bloomington
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