New Recordkeeping Laws Pose Threats and Provide Opportunities
Many business enterprises already know that new recordkeeping laws around the world severely imperil those that have failed to adopt a compliant records management program.  But fewer companies have discovered how the new laws actually create significant opportunities to save millions of dollars and dramatically reduce risks of liability in litigation.

Bryan Cave’s Records Management Team increasingly has become the choice of U.S. and global enterprises looking to bring their records management policies into compliance with all applicable laws, including eDiscovery rules, and to benefit from opportunities for significant financial savings and reduction in exposure to liability.

Proliferation of Electronic Records
It has been estimated that, today, over 90% of all business records are created and maintained in electronic form.  The relative ease with which these records can be saved and stored has led to a proliferation of electronic data on user devices, servers, and backup tapes.  Many new and complex layers of recordkeeping laws and regulations have evolved over the preceding decade, not only in the U.S. but also around the world.  Some even conflict with one another.   Large business enterprises are searching for highly specialized legal and technological expertise to help them navigate through these treacherous waters.

Our Records Management Team provides fast, practical, value-added counsel to clients that need to update their existing records management program in order to comply with the new laws, or to design and implement a compliant program from the ground up.

With team members located in offices around the world, Bryan Cave can provide the right people in the right place with the appropriate resources to address quickly and efficiently the global records management needs of our clients.

Our Unique Capabilities
Clients of Bryan Cave’s Records Management Team receive unique benefits:

• We were among the first law firms of global stature to launch a records management practice. 
• Our RM Expertise has received international recognition.
• We originated the most imaginative, cost-saving and liability-reducing electronic records management solutions in the marketplace, as evidenced by how frequently we have been copied by our competitors - consultants and law firms, alike.
• We have developed and we maintain the most comprehensive and up-to-date global databases of records laws and regulations.
• We are able to use our resources efficiently.  Having invested early and heavily in a global RM knowledge base, there is little need for us to perform costly primary research into international laws and regulations.  We can pass on to our clients the substantial savings derived from our extensive prior experience.
• As records management laws continue to change, Bryan Cave’s established RM practice team will be there for you.  We provide many clients with regular updates and alerts to assure that their RM policies, procedures and retention schedule always remain current and complete.
• Our clients have commended us for our imaginative solutions, and for delivering cost-saving results,  For instance, one records management client recently told us that it will probably save more than $500,000 in eDiscovery costs as a result of having disposed of its obsolete data backup tapes several years ago, following our recommended program of legacy data remediation.

Legacy Data Remediation
New laws recognize a “safe harbor” for good faith disposition of emails and other records consistent with a records management policy, records retention schedule and implementation procedures that have been prepared or reviewed by qualified RM counsel.  We call this process “legacy data remediation.”  If properly carried out, legacy data remediation can deliver huge savings to a company during the process of eDiscovery, not to mention reduced data storage costs and time spent searching for and locating useful data when needed.

A recently published article claims that two-thirds of all US companies are unprepared for eDiscovery.  Many corporate counsels facing the specter of litigation today are gripped by fear of not having retained enough documents. The default solution they prescribe for their companies is cheap and easy - just keep everything.  But that approach puts the company at great risk, can be enormously expensive (now and at the time of eDiscovery), and is definitely not required by law.

Consider this proposition: Prior to a “triggering event” giving rise to a legal hold, a company could, if it wished, lawfully dispose of all its electronic records except for the few categories of those, such as tax records, that it is required by law to keep for specified retention periods.  Of course this would be highly ill advised, and we certainly do not recommend it.  Business records should always be kept for as long as they are needed, but then disposed of promptly and in the ordinary course of business once they are obsolete.

Consider another proposition: Litigation statistics show that the older a record is (particularly electronic records like emails), the more likely it is to be harmful (and often unfairly so).  Until a triggering event has occurred, there is no need to keep most emails longer than a year, and usually for a much shorter period, except for those selected emails that actually "support a conclusion reached or position taken" by the company.

There is a surprisingly inexpensive and easy way for companies to sort their emails at the time of sending or receipt, using powerful software and certain basic rules that even the most unsophisticated record-makers can master.  We have identified five categories of electronic records.  Only two of these categories need be kept for relatively longer retention periods  (usually 3, 5 or 7 years, at most).  The other three, comprising the vast majority of emails, can be deleted immediately or after a period days, weeks or months depending upon company preferences.

Web-based Training Modules
We have also developed rich and engaging on-line, Web-based training content designed to teach your employees everything they need to know in order to comply with all applicable records management laws and at the same time position your company to save large sums of money and reduce exposure to liability.  It is not hard, and the cash returns are dramatic, both immediately and at the time of eDiscovery.

Warning about Backup Tapes
A word of warning: Backup media should be used exclusively for the restoration of operations in the event of a disaster or other business interruption.  Do not use your disaster backup tapes as the storage location for the records you are managing.  And, do not retain backup tapes any longer than necessary, as determined by your IT staff. In the absence of a triggering event, nightly backups usually can be overwritten after a week, weekly backups after a month, and monthly and yearly after a year.  The cost of forensic eDiscovery of a backup tape averages about $5,000 per tape.  If you have 100 backup tapes, just do the math.  Often, eDiscovery can end up costing the company without a robust records management program more than the litigation is actually worth.

Related Services We Provide for Our Clients
Our basic RM engagement consists of preparation of a legally comprehensive RM Policy, drafting of legal-related Implementation Procedures and preparation of a Records Retention Schedule.  In addition, we also regularly assist our clients in the following related areas:

• Assessment of the Client’s Current RM Landscape
• Preparation of Client’s Current Data Map
• Gap Analysis – Comparison of Current Policies and Procedures to Best of Class
• Preparation of Client’s New Data Map
• Drafting of Management and IT Implementation Procedures
• Assistance in Process of Software Solutions Selection
• Recordmaker Training and “Informed Assent”
• Development of Monitoring and Enforcement Programs
• Assisting the Client’s Legal and IT personnel to obtain Senior Management and Board Level Buy-in of the new RM Program

Records management must be addressed at the soonest possible time in order to mitigate the huge costs and exposure to liability associated with ineffectual or nonexistent RM programs. 

Contact us.  We can help.