September 7, 2012

Can Three Words Make A Difference? Yes They Can

by Cary J. Calderone, Esq.
Is this short email important?

The three words I am really thinking about are "Received, thanks [name]." This is another post about why I like the book "Zubulake's e-Discovery-The Untold Story Of My Quest For Justice."  In my speaking engagements and consulting, I have fielded many questions from AIIM and ARMA members who challenge (this is putting it lightly) the expanded legal description of a record.  They claim lawyers make it overly broad and unworkable.  I disagree and here is why.

Those in records management prefer to limit the designation of a Record to pre-defined items and as few as possible.  Fewer and easily identifiable Record categories means lower volume and better controls.  But even "pre-defined" is open to argument and interpretation.  Moreover, when people do not know specifically how to act and what to delete, they don't.  Paralysis sets in and electronic information grows out of control.  This can be especially true when a user knows an item is important, but it does not fall within a clear definition of a Record.  In her book Laura Zubulake describes one of the key pieces of evidence in support of her lawsuit.  It was a simple email reply to an email inquiring whether the recipient had read a previous email.  "Received. Thanks [name]" was all it said.  That simple email shattered a defense claim that UBS Warburg's decision for termination had pre-dated knowledge of her sexual discrimination complaint.  That email set the timeline which was critical to her legal victory.  So consider this; is there an entry in any Records Retention and Deletion schedule where that three word email would be classified and retained as a Record?  Would it get automatically classified?  Would it be left up to an employee to retain it? Under most retention schedules and practices, apart from those that are in highly regulated areas like finance, it is doubtful.  This is why we have the expanded legal definition for litigation and why most good RIM programs identify and manage non-Records as well Records.

Once we acknowledge the fact that even short, relatively inconsequential emails, can have a huge impact in a lawsuit, we have to ask questions.  Will your Records program identify them?   Will you just take a chance that you can find it, or that nobody will find it?   If I were advising you as a legal client, I would tell you that finding critical emails and other electronic communications can save you a lot of money.  This is true whether it is the key piece of exculpatory evidence or whether it is damning.  In the case of the latter, you are still better off discovering it early so you can avoid time, expense, and legal fees, pursuing a losing defense.  If an email can help you win, you will be in the best position to be sure to make it admissible in your legal proceedings.

Classification and management of Records is still important, but classification of non-records may be even more important as electronic information grows on our network.  In the near future, a critical three word email might be replaced by a simple click on a "Like" button on one of your company's internal blogs or social applications.  Just like that short email, it can show knowledge and set a timeline.  How does your RIM program handle "Likes?"  Does it even contemplate them?  It should.

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