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Litigation Readiness

Metadata in Court:  What RIM, Legal and IT Need to KnowA study by John J. Isaza, Esq.  Funded by the ARMA International Educational Foundation.

To arrive at an informed analysis, this paper begins by briefly exploring the role of metadata in authentication of records. This analysis will help the reader put in perspective how metadata ultimately could affect the admissibility of a record or document in court, and thus lead to an understanding of what and why certain metadata is critical. Next the paper will explore the general concepts of metadata and spoliation, including the leading legal think tank opinions on the issue.  The paper then will address recent concrete examples where the courts have ruled on the discoverability of metadata. Finally, the paper will conclude with a list of discernible patterns of preservation requirements for information governance professionals to glean in setting policies and procedures regarding the capture of metadata for both records management and e-discovery preservation.  Given the limited treatment of the issue in courts, this paper will focus on the typical varieties of applications that yield documents or records where metadata is most often sought or litigated. These include email (and attachments), word processing documents, spreadsheets, presentation documents (e.g. Power Point), graphics, animations, images, audio, video and public records.  From discussion of these samples, the reader may be able to glean metadata fields to preserve for more customized applications or even enterprise-wide systems that facilitate record-keeping.

Legal Holds & Spoliation: Identifying a Checklist of Considerations that Trigger the Duty to PreserveA study by John J. Isaza, Esq.  Funded by the ARMA International Educational Foundation.

In the aftermath of Sarbanes-Oxley, concerns over discovery and spoliation
have catapulted to the priority lists of most companies, specifically regarding what is considered pending or potential investigations or litigation. After all, severe penalties, including the possibility of jail time, are at stake for those involved in the destruction of relevant documents. Companies, therefore, must balance such severe consequences with proper management of all records, including electronic ones, during litigation. A central and difficult issue surrounding an otherwise sound retention policy is the determination of how and what records must be held from destruction, especially when faced with determining what is considered “potential” (or threatened) litigation or investigations as opposed to clear “pending” litigation. This article, thus, identifies a duty to preserve continuum that should provide companies a set of parameters for triggering a “legal hold” on destruction of records subject to pending or potential litigation or investigations.

Implementing Litigation Readiness A study by John T. Phillips, CRM, FAI, CDIA+.  Funded by the ARMA International Educational Foundation.

A major benefit of RIM programs is to reduce risks that accompany poorly organized and inconsistently retained records before, during, and after litigation. In order to assure that their clients are managing records appropriately in preparation for impending litigation, some law firms are now encouraging their clients to implement Litigation Readiness activities, including conducting records inventories, policy reviews, creating data maps of electronic records and reviewing records retention rules. This research study assessed the extent to which law firms are using these Litigation Readiness activities to prepare clients for litigation, and the role of industry information management associations and standards in facilitating these actions. The research revealed a host of opportunities for individuals and groups, including the records management staffs of law firms, to provide consulting, retention scheduling and policy development, software services, training and support services, working alone or in partnerships.  The role of standards and guidelines for Litigation Support was also evaluated. John Phillips, of Information and Technology Decisions, is the research associate leading this project. He can be reached at 865-966-9413, or by email at john@infotechdecisions.com

Proving the Authenticity of a Document in Electronic Format Introduced as Evidence— A Study by Stephen Mason. Funded by The ARMA International Educational Foundation. 

The question of proving the authenticity of a document in analogue or digital (generically ‘electronic’) format is of great concern to information and records managers. This stems from core professional principles regarding the integrity of recorded information and techniques developed over time to be able to prove the authenticity of a record that is recorded on a tangible physical carrier, most likely to be paper. As a result, there has been a concern with the quality of the paper, together with procedures such as copying facsimile messages to bond paper, because the text printed on some types of paper used in facsimile transmissions tend to fade. Part of this effort is directed towards the objective of having an acceptable and authentic record that is admissible in a court. The same issues are of concern today, except the concerns of documents in electronic format include a mixture of the tangible and intangible. This paper aims to discuss the legal requirements for introducing electronic documents into court as a form of evidence, mainly in the context of the jurisdiction of England and Wales, and some of the considerations that may be taken into account if a document in electronic format is challenged by either party to legal proceedings.

Legal Holds for Anticipated Litigation: New Case Developments to Determine Triggering Event & Scope of Production—A Study by John J. Isaza Esq. Funded by contributions from the Los Angeles and Orange County Chapters of ARMA International to the ARMA International Edcational Foundation.

In 2004, the ARMA International Educational Foundation sponsored a study entitled “Legal Holds and Spoliation: Identifying a Checklist of Considerations that Trigger the Duty to Preserve” (hereafter the “2004 Study”). See above. The 2004 Study identified a duty to preserve continuum for records retention in general. It also provided parameters for triggering a “legal hold” on destruction of records subject to destruction not only under the records retention policy, but also for any other documents or information in the company’s possession at the time.

Since the 2004 Study was published, companies continue to struggle with litigation holds for foreseeable, potential or anticipated litigation, as contrasted with “pending”  litigation where the company has already been served or is aware of the lawsuit being filed in court. Foreseeable, potential or anticipated litigation is a thorny case or fact-specific issue. On top of that, the revised Federal Rules of Civil Procedure, effective December 1, 2006, have made the issue a top priority. Accordingly, the purpose of this supplemental study is to survey cases that address when the duty to preserve attaches for such potential or anticipated litigation, including the all-important determination of scope (i.e., what to preserve). 

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