On Tue, Nov 27, 2012 at 6:09 AM, Carol E.B. Choksy <
[log in to unmask]> wrote:

> 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. (snip)
>
> I advise my clients to avoid worrying about whether information is a record
> or not and just worry about managing it appropriately. (snip)
>


No doubt the comments above are true, but I think the point being made by
others earlier in this thread were more related to the concept of
establishing POLICY and PRACTICES to ensure employees/staff know what
qualifies as a "record" based on the policies of your organization and that
they are ONLY OBLIGATED to retain that which is a record, and only for the
retention periods established in their organization's schedule.

It's not necessarily an issue of "worrying" about it being a record, it's
more a mater of not retaining anything that isn't in the first place and
then not NEEDING to worry about it being subject to discovery later.

It's similar to organizations whose IT departments make the knee-jerk
reaction to deploy "email archiving applications" that retain a copy of
EVERY MESSAGE that comes in and goes out of an organization for
simplification.  Later, when they're involved in a legal case and required
to produce a data map, it comes to light that a copy of EVERY EMAIL has
been stored... and a demand can be placed to produce "...all messages
related to XYZ..." must be responded to.  If the same organization retained
messages AFTER all of the non-records had been culled and other messages
had been assigned retention periods, there would be a MUCH smaller haystack
to search for needles in.

So with this new "Pandora's Box", if your organization is deploying it, it
seems advisable to establish a policy on what it is used for and how you
manage the content it generates PRIOR to or IMMEDIATELY AFTER deployment
and that staff be trained on its use, its benefits and its risks.

Larry
[log in to unmask]

-- 
*Lawrence J. Medina
Danville, CA
RIM Professional since 1972*

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