# Presentation: 446088

## The Sedona Guidelines in The Federal ContextMeeting Challenges and Changes in Electronic Records Management

**The Sedona Guidelines in The Federal Context****Meeting Challenges and Changes in Electronic Records Management**

## Road map

- 1.	General challenges for modern records management
- 2.	Challenges within the litigation context
- 3.	Challenges outside the litigation context
- 4.	The road to Sedona ...

## Treasure map?

- What is the role and value of records?

- What is difference between records and evidence?

- Who wants what?

## Challenges: Technology and Business Processes Today

- Over 95% of information is created in an electronic (digital) format
- Unforeseen ability to accumulate vast amounts of data in this format
- Technology outstripping records management and legal developments

## Challenges:  The Need to be Multilingual 

- Records management professionals
- Genesis in paper paradigm of centralized paper records
- Information technology professionals
- Genesis in reliable storage and retrieval of all needed data
- Lawyers
- Focus on need for evidence in investigations and litigation to protect legal rights

## Challenges for Information and Records Management in Litigation

- Preserving *evidence*
- Retrieving and processing massive amounts of data
- Providing support to help vindicate claims and defenses

## Preservation Challenges

- Not a simple “off” switch
- Ever-changing electronic records
- Self-purging e-mail systems
- Dynamic databases
- Routine recycling of back-up media
- Not a cost-free operation
- Not a foolproof operation
- Could be crippling
- Communicating those facts to the Court (*Cobell; Jinks-Umstead v. England; Landmark Legal v. EPA; McPeek; Pueblo of Laguna; Renda Marine*)

## What Can Go Wrong?

- Without a plan, *everything...*
- Typically, courts look at “spoliation” of evidence -- an assessment of the loss of relevant evidence and the identification of who, if anyone, should bear a consequence, as well as what that consequence should be.
- Monetary Sanctions (*Prudential; Philip Morris*)
- Exclusion of Evidence (*Trigon; Philip Morris*)
- Adverse Inference Instruction (*Linnen; Zubulake; MOSAID; Morgan Stanley*)
- Default Judgment (*Metropolitan Opera; Keir*)
- Contempt Sanctions (*Landmark Legal v. EPA*)

## What Can You Do?

- Institute a defensible litigation response plan

***Stop, Drop and Roll***
_**1**_  Have a means to identify and react when a preservation obligation may have been triggered (“Stop”)
_**2**_** ** Have a drop down menu or checklist ready to guide you (“Drop”)
_**3**_  Be able to implement your plan efficiently and effectively (“Roll”)

## Challenges for Information and Records Management Outside of Litigation

- Identifying agency records from the mountain of data
- Creating systems for capturing records for efficient and reliable retrieval
- Educating employees regarding records management needs for agency compliance
- Problems are real -- AIIM, Cohasset, ARMA, e-Policy Institute

## What Can Go Wrong?

- Lose critical records necessary for agency operations
- Expose protected information to unauthorized disclosure
- Dramatically increase the cost of identifying and managing agency records
- Fail to meet FOIA responsibilities
- Fail to meet Congressional demands
- Fail to meet litigation needs
- Expose agency and government to potential civil liability
- Depending upon circumstances, there could be criminal liability

## Where is the Guidance?

- Standards and Benchmarking
- NARA guidance documents
- DOD guidance
- ISO 15489-1 provides basic guidance
- Informal “benchmarking” between companies and agencies
*Sedona Principles* and *Sedona Guidelines*

## What is Sedona?

- The Sedona Working Group on Electronic Document Retention and Production is part of The Sedona Conference, a 501(c)(3) think tank
- Currently has over 180 participants, members and observers in this Working Group
- Lawyers (outside and in-house), technology consultants and records management professionals
- Approach to issues based on “Rosetta Stone” concept

## Lessons from Sedona

- Complex problems
- Technology continues to rapidly outpace policy development
- Significant “disconnects” between legal paradigm and real-world operational environment
*The Sedona Guidelines*:  5 basic guidelines; added commentary
*The Sedona Principles*:  14 basic principles; added commentary

## Hope and Opportunity:  What Sedona May Mean for Federal Records and Information Management

**1.****	****Opportunity to benchmark against emerging “best practices” in private sector**
**2.****	****Starting point for assessing “litigation hold” and “litigation response” readiness**
**3.****	****Touchstone for defending litigation response practices**
**4.****	****Tool for communicating between legal staff, records managers and information technology professionals regarding records management and litigation practices**
**5.****	****Forum to create new collaborative works -- including possible ****government-specific applications of *****Sedona Principles***** and *****Sedona Guidelines***

## New Projects for Sedona

**Special project teams addressing:**
**Retrieval sciences**
**E-mail archiving**
**Evidentiary issues**
**Benchmarking**
**International issues**
**Legacy data issues**

## Seven Traits of Highly Successful Records and Information Management Programs

- Know your legal obligations and operational needs
- Know your data -- types and sources
- Have ground-level policies that strike a balance between specificity and practicality
- Employ effective policies to address communications
*E-mail; V-mail; I-M; collaboration software*
- Institute meaningful employee training
- Enable audit and compliance tools and processes
- Have a viable litigation response plan and team

## www.thesedonaconference.org