RM—the changing role of technology
Once the document has been declared a record, the role of content originators becomes less ambiguous: Records should be managed centrally, as they are in the Microsoft LCA, not by individual users. In that application, once the e-mail is in a SharePoint folder, the retention rules are applied automatically. The drawbacks of user-driven management may not come to light unless e-discovery is mandated, but then the impact can be severe. In numerous cases, courts have ruled against defendants whose organizations lacked reasonable policies for records management.
Sanctions were imposed on the defendant in Jones vs. Brennan, for example, when employees, including those involved in that discrimination case, were able to delete e-mails. Similarly in Adams vs. Dell, individual employees were allowed to determine which e-mails had long-term value and to decide what information should be moved to a new computer. In that case, the court ruled that the defendant had destroyed relevant evidence, and noted that many authoritative organizations have provided guidelines for document retention and destruction, which should have been followed.
"Centralized management of records is more efficient and also removes the risk involved in possible conflict of interest when a custodian is involved in a case," says Kon Leong, CEO of ZL Technologies. "Also, employees often are not legal experts, so they are not qualified to make these decisions, and should not be expected to do so."
Leong points out that technology is now better able to support such management than it was five years ago, in terms of automated classification that provides the ability to apply rules to very large amounts of data. The ZL Unified Archive automates records declaration by using document metadata such as author or title, but can also perform content-based classification, and identify patterns of text such as social security numbers. Records managers can manually augment or override the automated classification, which allows human intervention when needed.
RM and social media
The emergence of burgeoning social media content will only make the problem of records management more complex. The Financial Industry Regulatory Authority (FINRA), for example, an independent regulator for securities firms in the United States, issued a notice in January related to records retention of social media content. FINRA's guidance states that a firm allowing communication through social media sites "must first ensure that it can retain records of those communications as required by ... the Securities Exchange Act of 1934." In its notice, FINRA indicated it is aware that technology is under development that is intended to enable firms to capture and retain such records, but is not certain that adequate technology exists.
With all this additional content, much of it produced casually, formal policies may become more difficult to enforce. With communication moving at the speed of Tweet, it is hardly realistic to expect employees to take the additional step to declare a record. Therefore, automated capture and declaration are the only viable options, but many details remain to be worked out.
"Web 2.0 content is certainly becoming quite a challenge," says Baron. "Right now there is no perfect solution, but with the next generation of solutions that can help automate the management of electronically stored information, records managers will have another resource with which to tackle the problem.