Records management myths of note – III and IV (by George Cunningham)

Myth 3 – If you have a records retention schedule that applies to paper records, you need to create another schedule for electronic records.

Truth 3 – Not necessarily so. If you have a sound, well researched records retention schedule that covers all of your hardcopy records, you are ahead of the game. The same retention periods that apply to hardcopy apply to digitize information. Under the law, and according to the courts, the generality is that the rules apply to the subject or content, not to the media.

Corollary 3a (to Myth 3) – It is ok to treat e-mail with a single retention period, say 90 days.

Truth 3a – Again, content governs. Just because it is an email, that doesn’t except it from existing rules or make it subject to different rules. If an email and attachment refer to a specific contract or agreement, the retention that you would normally apply to a printed version of that contract or agreement would apply to the electronic version as well. Law departments who try to deal with their email retention problems by instituting a 90 day (or similar) rule are finding out the hard way that this is not acceptable. Users work around it and the courts frown on it.

Myth 4 – If a law department asks its outside counsel for everything in the file, outside counsel doesn’t have to give everything; copies of the hardcopy already given will do.

Truth 4 – If a client asks for everything in its client file, with a few exceptions, outside counsel probably have to give them almost everything, both hardcopy and electronic. Read Sage Realty Corp. v. Proskauer Rose LLP, 689 N.E.2d 879 (1997) for details. Parts of this decision were overturned but the core survived. And this case is front and center with the insurance companies that underwrite law firms. [George Cunningham, Pelli Group, on records management] (See the first two myths in Cunningham’s post of March 23, 2007.).