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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."

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