Get your records in order before litigation strikes
Intellectual property attorney advises records managers
Chicago attorney Bradley Hulbert, a partner with the law firm McDonnell Boehnen Hulbert & Berghoff (www.mbhb.com), contends that records frequently determine whether a major case is won or lost. The following is extracted with permission from Hulbert’ s speech entitled "As a Trial Attorney, How Would I Attack the Way You Manage Your Electronic Records?" Here is an excerpt:
I love records. Memories fade after a while. Without documents to remind them, most people will tend to think, "Oh yeah, we did a really good job. No, no, we checked that, I’ m sure we did." But those records - they just stay there. The memories fade; the records do not.
The litigator’ s objective is to look for the weak points and exploit them. You have to understand that when trying to build a records management system.
OK, how do we attack the record management process? Look to the creation of the records:
- How was this record made?
- Did it go through any conversions?
- Did people have access to the records?
- How was it stored?
- Did someone, maybe the chief inspector who was asleep that day or had a drug problem, have access that would allow her to change the record to obliterate any evidence that she goofed up?
- Is it possible when pulling this record out of storage that somehow it was changed?
- Is it possible that this record was destroyed or doesn’ t exist because it showed something bad and someone was trying to hide some evidence?
Let’ s look at all of the other possible weak points in the record management system:
- Who was doing the recording?
- Look at their medical records.
- Do they take prescription or non-prescription sedatives?
- Do they have a drinking problem?
- Do they have psychiatric problems?
- Who has access? Is there someone out there who says, "Oh no, let’ s speed this up. It’ s going too slowly."
- Is there someone who goofed up and wants to hide that evidence?
- How can you get in there to change the records?
- Are these files encrypted or do you just leave them out for anyone to change?
- Is there perhaps some employee who is obliterating evidence out of misplaced loyalty to the company?
- Is there some manager whose bonus is dependent upon lack of foul-ups and who is going back there and changing the records?
Non-records are wonderful too. You look for not only what’ s there but for what is not there. If it’ s not there, there’ s a reason. Similarly, if all of the entries are there except for the one that you want, the litigator will argue to the jury that somebody took the record away for a reason. You look at the jurors and say: "Draw your own conclusions."
I love a lack of records management policies because that just means it’ s whimsical. That means you don’ t care if you have accurate records or not. That’ s as good as having no records.
Safeguarding records management practices
Of course, controlled, documented access to records is a key part of any records management system.
Encryption is an option. Remember that to the extent encryption can be used and it’ s not, you will be asked during a lawsuit why you didn’ t use it.
To the extent that a company has a policy, the company had better follow it. Otherwise, through its own records, the company has established the opposing counsel’ s case.
Do audits. Full audits are good, but partial audits may be perfectly acceptable.
Ensure that the policies enable you to promptly obtain the records.
Designate a spokesperson: someone to explain to the judge and the jury how the records management system works, someone who understands it thoroughly and is able to say: "I would bet my children’ s lives on the fact that these records are accurate and haven’ t been changed."