December 3, 2008

A Shout-out to Records Managers: Don’t forget the lecords and becords

by Cary J. Calderone, Esquire

No, this was not an attempt to increase my Blog’s page visit time by using a few strange typos in the title. Rather it is my well-intentioned plan to add some new words to our Electronic Discovery language. Records managers have been using the term RECORD for decades to separate a mere copy, draft or scribble from an important company document that needs special attention. The RECORD copy was subject to retention schedules and possibly higher security and archiving protocols as well. Non-RECORDS were largely considered unimportant. Two things have changed to make Record and Information Managers' (RIM) jobs a bit less fun.

Firstly, we have the introduction of the desktop computer as an office productivity tool and with it, email. RECORD and Non-RECORD distinctions simply do not work very well with email. For example, does an email that has a RECORD attached to it, or a copy of a RECORD attached to it, and may discuss the subject matter of the RECORD, get the same treatment under the Retention Schedule? Secondly, the lawyers got involved (do we ever make things any easier?) and have been directed by State Courts and the Federal Rules of Civil Procedure to work with Electronically Stored Information (“ESI”). To the Courts and the litigants what is important is not whether an email is a RECORD or non-RECORD but whether it might be a “business record” or “legal record.” If it falls in either of those two categories a company may need to preserve it as part of its reasonable computer record keeping practices. This is especially true when a particular industry is highly regulated or the company is preserving data pursuant to a Legal or Litigation Hold. Hence, I thought it was time for newly invented ESI Retention words to use because when legal discovery documents refer to “Records” they mean lecords (legal records) and becords (business records).

These new words work well with the modern rule that says anything that documents how a company makes business or legal decisions, i.e., lecords and becords, are determined by content and not whether they are a word document, an email message or an old fashioned piece of paper. They may even include telephone voicemail messages that are stored on a computer or PDA. Also, lecords and becords may include all copies that appear to be identical and previously would have been distinguished and separated from the RECORD copy but now need to be treated as potentially important evidence. Sometimes this is because of the content and the distribution list, but other times copies may be important because they contain hidden meta-data that reveals things like who opened or edited the document and when. The world of RIM was never designed to capture this type or volume of information. Even a separate log document to determine who checked out or edited a RECORD will not work nearly well enough.

Moreover, thinking about lecords and becords helps one to understand why an Instant Message, where one co-worker asks another co-worker out to lunch might be important enough to keep. There is not RECORD category for seemingly innocent chit chat between co-workers. There is no Retention Schedule covering Instant Messages about lunch dates. However, if the message said, “want to get together for lunch to talk about why we might miss our quarterly numbers” it may certainly be considered a becord. Or, if it was the 4th IM from the same employee asking out another employee who complained to a supervisor about sexual harassment, then it would be a lecord. As a becord or lecord there could arguably be a duty to preserve these messages, even if according to the rules of RECORDS and non-RECORDS and the Retention Schedule, these messages do not merit special attention. By thinking about becords and lecords, a company can stay a little safer. I have used both these examples with Records managers to illustrate my point, and while they do not necessarily like the new perspective, and obligations it creates, it does make sense to them given our usage of email and IMs.

In my dealings with Records Managers, this has been a very difficult distinction to comprehend and appreciate. I understand their frustration and hope that the idea of RECORDS, lecords and becords may make their jobs easier. I want to keep Records Managers involved in the retention management process because there is nobody in a corporation, who has more experience tagging and organizing information. True, the tagging and organizing processes have changed from paper to the new world of ESI, but I believe RIMs will be the most important part of the solution moving forward.

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