Simplicato’s Weblog

According to PRNewswire an Ohio law firm, Harrington, Hoppe & Mitchell (HHM), has released a set of general guidelines designed to help companies address the “growing concern over legal challenges related to electronic document retention.” HHM has posted excerpts of the guidelines on its website, with the complete and unabridged information provided to the law firm’s clients in a “comprehensive and proprietary document” just recently.

John L. Pogue, chairman of HHM’s business services practices group, issued the following statement for the press release: “Improper management of electronically stored information creates a huge risk. Some companies that have found themselves uninformed or unprepared in this area have sustained themselves massive judgments. In today’s business climate it is important for companies to build well- defined policies that address how email and electronic documents are used and managed, and to communicate and enforce those policies.”

I wholeheartedly agree. There is no question about the importance of integrating an email compliance and document retention solution. However, what I find truly significant here is that the warning to properly manage electronic information has come from a legal entity and NOT from an industry analyst. In a recent post entitled: “New eDiscovery reference promotes necessity of email archiving,” I said that “while it is unlikely for business executives to run to the ABA and order a copy of their own, there is a great chance that corporate lawyers will purchase the book and relay the information back to their clients.” The bottom line is that attorneys NEED to assist in the corporate education process with regards to email compliance and electronic data retention. Learning about the dangers of email retention from anonymous editors and obscure marketing professionals just doesn’t appear to have the same effect as hearing it from a respected legal practitioner.

I am posting the excerpted guidelines from the HHM website just below because I think it is essential for every organization to review:

“Note: This information was excerpted from Drafting and Implementing Document Retention and Litigation Hold Policies, a comprehensive and proprietary document HHM developed for clients in response to growing concerns about the issue.

1. Every company is different. Not all companies rely equally on technology in their communications. Also, some companies allow employees to take digital information home, while in others that is not practical. Because tools and practices vary so widely, there is no one-size-fits all rule.

2. Consider laws already on the books. Certain businesses are subject to federal and state regulation of records retention, so it is important to investigate whether any of these apply. This applies to both electronic and paper records.

3. Consider the breadth of electronic communications your company uses. A sound electronic communications policy establishes permissible and prohibited uses, notifies employees that the company is monitoring electronic communications and sets up security procedures, etiquette, and records retention guidelines. As part of this process, a business needs to consider the types of electronic information that it uses: email, word-processing documents, spreadsheets, databases, digital images, scanned documents, and digital sound and video recordings. Federal courts refer to this as “electronically stored information” or ESI. Email raises its own technical questions that are important in drafting an effective policy.

4. Determine the possible locations where this information may be located. This may require a thorough inventory, because information could be stored on computers and devices not even owned by the company. For example, a flash drive can hold thousands of files, and an employee may use such a device to take information home to finish a project. If that employee opens a document on his or her home computer, that computer is now a repository of information that may be relevant in future litigation. Policies need top address these situations.

5. Establish a “litigation hold” policy that outlines a response to potential litigation. This policy, which should be created with input from the company’s legal and information technology advisors, suspends the application of the document retention/destruction policies for relevant documents. Then the business needs to implement and enforce this policy. It is at this stage that companies like Morgan Stanley have run afoul of the judicial system and paid the price.”

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