1. Embedding Records Management in Process and Technology
or How to Avoid Prison
NGMA Training Template – cover slide
B. John Masters, SME
Alyx Technologies, Inc.
(813) –

2. Disclaimer
I am not an attorney (nor did I stay at a Holiday Inn last night), and nothing in this presentation should be considered legal advice.
Always consult your legal counsel prior to making any decisions concerning policy, procedure, or records disposition.

3. Agenda Level Set Litigation How Does if affect my grants
What are records
What is records management
Why bother
Litigation
Are you prepared
When are you required to place a “litigation hold”
What are the risks
How Does if affect my grants
What are the records keeping requirements
What are the records management requirements
What does the State of Florida prescribe
Avoid the pitfalls
The challenges
Does your technology help or hurt
Planning for Records Management
Who, what, when, where, how

4. Level Set
What are records
What is records management
Why bother

5. ARMA/ISO definition of a record
What are records
Recorded information, regardless of medium or characteristics, made or received by an organization that is evidence of its operations, and has value requiring its retention for a specific period of time. Recorded information in any format, that is created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business. Records have these characteristics:
Authenticity – It is what is says it is.
Reliability – It can be trusted as a full and accurate representation of the transactions or facts.
Integrity – It is complete and unaltered.
Usability – It can be located, retrieved, presented and interpreted.
ARMA/ISO definition of a record

6. Is Everything A Record? RECORDS Structured Semi-Structured
Organizational Knowledge
Analog
Digital
Content
Structured
RECORDS
Semi-Structured
Un-Structured

7. Just Keep Everything Forever
All Content Treated With Equal Importance, Nothing Gets Thrown Away

8. Why We Manage Records vs. Records Management Records Retention
Supports event and time based retention rules
Structured file plan organizes records and manages, enforces complex policies/rules
Enables legal holds, facilitates audit and electronic evidence discovery
All processes are audited and managed
Ensures record authenticity, integrity and contextual relationships
Preserves records over time and ensures reliability
Ensures record access, retrieval and usefulness
Prevents unauthorized deletion
Ensures timely disposition and complete record expungement
Ensures privacy and record security policy management
Supports physical records
Supports only time based retention rules.
Single (or only a few) simple retention rules.

9. Makes Good Business Sense
30-50% of information available within an enterprise is NOT centrally indexed (IDC White Paper – The High Cost of Not Finding Information)
An enterprise employing 1,000 knowledge workers wastes $48,000 per week, or nearly $2.5 million per year, due to an inability to locate and retrieve information
Knowledge workers spend more time unwittingly recreating existing knowledge than in creating new knowledge. (Kit Sims Taylor study presented at the International Conference on the Social Impact of Information Technologies)
This knowledge deficit translates into an average cost of $5,000 per year per knowledge worker
An enterprise employing 1,000 knowledge workers wastes $5 million per year because employees spend too much time duplicating information that already exists within the enterprise

10. What Is Your Obligation
Author Control
Agency Control
Records Management
Legal Rules
Regulatory Compliance
Business Rules
Access Control
Declare and Classify
Activity
Retention
Disposition
Store/ Transfer
Document Creation
Assign Properties
Workflow
Collaboration
Expunge
Governance Requirement
Time

11. Litigation
Are you prepared
When are you required to place a “litigation hold”
What are the risks

12. Doing Your Duty
The duty to preserve arises on a reasonable anticipation of litigation.
It may expand on receipt of pre-litigation correspondence, service of process and/or subsequently served requests for information.
After litigation commences, the duty to preserve will likely prohibit routine document destruction, but may also prevent the continued use of files and databases stored in electronic media.
“If the continued use of one's computers, files, and/or databases will alter the information that may be relevant to the litigation, a party may seek a preservation order barring further use until the information can be retrieved or copied.” - Kaufman

13. Courts Put The Hammer Down
The court in Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574, (S.D.N.Y. 2004) (Zubulake V), outlined the duties of counsel to preserve potentially relevant evidence. The court explained those duties as follows:
When litigation is reasonably anticipated or at the commencement of litigation, counsel must issue a "litigation hold" which should be periodically re-issued to keep it fresh in the minds of employees and to make new employees aware of it.
Counsel should identify the persons who are "likely to have relevant information" and communicate directly with these "key players" to ensure that they are aware of their duty to preserve relevant information. These "key players" are the persons identified in a party's initial disclosures and any supplementation thereof.
The court found that counsel have a duty to instruct all employees of their client to produce electronic copies of their relevant active files and to identify, segregate and safely store relevant backup tapes. The court went so far as to suggest that, in an appropriate case, counsel take physical custody of relevant backup tapes to safeguard the information.
Zubulake v. UBS Warburg is a case heard between 2003 and 2005 in the United States District Court for the Southern District of New York. Judge Shira Scheindlin, presiding over the case, issued a series of groundbreaking opinions in the field of electronic discovery. In an employment discrimination suit against her former employer, Laura Zubulake, the plaintiff, argued that key evidence was located in various s exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of . However, the plaintiff alone had produced approximately 450 pages of correspondence. The plaintiff requested UBS to locate the documents that existed in backup tapes and other archiving media.[8]
The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing the Rowe decision.[9] The court stated that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format".[10] The court concluded that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic repositories: (1) online data, including hard disks; (2) near-line data, including optical disks; (3) offline storage, such as magnetic tapes; (4) backup tapes; (5) fragmented, erased and damaged data. The last two were considered inaccessible, that is, not readily available and thus subject to cost-shifting. The court, then discussing the Rowe decision (the balance test), concluded that it needed modification and created a new seven-factor test:[11]
The extent to which the request is specifically tailored to discover relevant information;
The availability of such information from other sources;
The total cost of production, compared to the amount in controversy;
The total cost of production, compared to the resources available to each party;
The relative ability of each party to control costs and its incentive to do so;
The importance of the issues at stake in the litigation; and
The relative benefits to the parties of obtaining the information.
The defendant was ordered to produce, at its own expense, all responsive existing on its optical disks, servers, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.
Finally, the court concluded that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents. As a result, Judge Shira Scheindlin ordered an adverse inference instruction against UBS Warburg. In the final instructions to the jury the Court instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in Zubulake's favor on both claims awarding compensatory and punitive awards. .[14]

14. Sanctions for Not Preserving
Prudential Ins. Co. of Am. Sales Practices Litig. - $1 million sanction for failure to develop and implement an evidence preservation program.
See Wm. T. Thompson Co. v. General Nutrition Corp - the court struck the defendant's answer, based on its failure to obey a court order requiring the preservation of certain records maintained in the ordinary course of business.
In Mosaid Techs., Inc. v. Samsung Elecs. Co., et al.- the Court crafted a special jury instruction not proposed by either side which was designed to punish the spoliator, deter future misconduct, and restore the movant to a position in which it would have been had its adversary faithfully observed its discovery duties.
Sanctions may include attorneys' fees and costs, the exclusion of withheld evidence, jury instructions concerning adverse inference and, in cases involving outrageous and/or intentional conduct, actual dismissal of the action.

15. Outcome of the Zubulake
The court concluded that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents. As a result, Judge Scheindlin ordered an adverse inference instruction against UBS Warburg. In the final instructions to the jury the Court instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in Zubulake's favor on both claims awarding compensatory and punitive awards.

16. How Does if affect my grants
What are the record keeping requirements
What are the records management requirements
What does the State of Florida prescribe

17. What is The Retention Requirement
The records must be supported by source documentation such as cancelled checks, invoices, contracts, travel reports, donor letters, in-kind contribution reports and personnel activity reports.
For every employee whose salary is charged, in whole or in part, to a grant, personnel activity reports must be maintained to account for all compensated time, including time spent on other activities.
Records must be preserved for three (3) years following submission of the final financial status report OR payment request (whichever is later).
Property, Plant, and Equipment records – Destroy three (3) years after asset is disposed of and/or removed from agency’s financial statement.
If Agency or PTE wants records kept longer, they must request transfer from the non-federal entity (NFE) (No further retention required by NFE once transferred.)
Grant expenditure records must be at least as detailed as the cost categories indicated in the approved budget
Agency may make arrangements for NFE to retain for records continuously needed for joint operations
Office of Management and Budget

18. Formats Should be in a machine readable format when possible
No proprietary formats
Must accept paper on request
Keep no more than original and 2 copies
May convert paper to images with proper quality controls (PDF-A preferred)
What about “structured data?”

19. Access Who gets access Purpose – Audits, examinations FOIA
Awarding Agencies
Office of Inspector General
Comptroller General
PTE
Purpose – Audits, examinations
FOIA
Agencies can’t restrict the NFE to limit access to award
Exceptions and restrictions on PII, FOIA exceptions, and Controlled Unclassified Information (CUI)
Doesn’t apply to NFE records unless data used in establishing federal regulations
PII must be protected. Only under rare or extraordinary circumstances would access include the names of crime victims. If access to names is necessary, steps must be taken to protect sensitive information. Absent a court order or subpoena, the agency must approve access

20. What the State of Florida Says
When your contract has been approved, create a grant file to organize grant-related materials such as:
a copy of the grant proposal and any financial worksheets used to compile the proposal budget
your copy of the Award Letter and signed Grant Award Agreement
copies of any correspondence from the Division
a copy of the final report; copies of financial worksheets and grant statistical data source used to compile the final report
copies of flyers, brochures, programs, catalogs, and news reviews and articles (particularly those showing compliance with credit language and logo) for final report purposes

21. But Wait! There’s More!
Grantees must maintain an accounting system that provides complete documentation of the use of all of the grant funds, including:
Accurate, current, and complete records that adequately identify the sources and use of funds for all grant activities, including detailed receipts for expenditures of state funds;
Effective control over and accountability for all funds, property, and other assets; and
Bills for grant services or expenses (i.e., invoices, bills, and canceled checks) in detail sufficient for proper pre-audit and post audit.
Grantees must maintain complete and accurate financial records, supporting documents, statistical records, and all other records related to this grant for at least five (5) fiscal years after the grant is closed (the final report is approved).
These records must be readily available on request for the entire period.
If there is an audit or litigation regarding the grant, then all records should be maintained for five years from the end of the audit or litigation.

22. Avoid the pitfalls
The challenges
Does your technology help or hurt

23. Does Your Technology Help or Hurt
Helps
Hurts
Maintains necessary dates
Provides security
Makes the RM process ubiquitous for end-users
Supports retention and disposition
Provides single final authority for information (authenticity)
Creates data silos
Difficult to assemble a complete record for a specific subject
Lacks appropriate security controls
Makes RM and discovery more difficult
No single final authority

24. How To Avoid the Pitfalls
Automated Records Management

25. Really, How Do We Stay out of Jail?
Minimize/Eliminate End User Decision
About whether (on not) to create a record
Decision is made by system / Compliance Officer
Automated Record Declaration & Classification
System decides when a document needs to be declared as a record, and how to classify it
Ad-hoc record creation becomes the exception
Automated Disposition
User Review and Approve process
Have a reasonable and consistently applied records management policy and retention schedule
Consider an information map – know where you stuff is

26. Planning for Records Management
Who, what, when, where, how

27. Planning to Support Records Mgmt
What to plan for
Where to look
Managing electronic records
social media
cloud based services or storage solutions
other records challenges
Managing paper records
File Shares
Large collection of materials
Created over time by numerous people
Various types of content
Not consistently filed/classified
SharePoint
Collections of content for collaboration
Better classified, but classification not consistent
Other Content Repositories
Not well classified
Open Databases

28. What to Look For Records Management Schedule
Is it current?
Is it media neutral?
Is everyone aware of and adhering to the schedule
How are analog (paper) records managed
How are electronic records currently managed
How are they stored?
Where are they stored?
Are they tagged or indexed?
Support Services
Are governance products available to help comply?
Is records management training provided? Required?
Are records management contacts designated?
Are content repositories and RM technologies available?

29. How To Do It Declare and Manage Records Access the Records
Inherit retention based on file-plan and metadata
Use a records management solution to manage in-place or migrate to RM system
Declare based on workflow process and properties
Use what you have – make it work
Access the Records
Global indexing and search systems
Entity extraction based on auto-categorization and summarization
Records disposition and transfer
Disposition Schedule consistently adhered to, reasonable, and up-to- date
All copies deleted except record copies (shadow-files controlled/eliminated)

30. Working with What You Have
Determine if existing systems can support your RM Policy and processes
What metadata is available?
Can it secure records and “lock” them?
Can I build reports to support a records management function?
Identify which systems hold the “record copy” of information
Establish a policy that new systems support RM functions.
Identify a responsible party for RM for the organization, and the “owner” of each record series.
Provide training, both during on-boarding and annually. (Have a Records Management Day at least once a year.)
Consider central repository solutions (Box, etc.) and consider inexpensive global indexing solutions

31. Thank you
B. John Masters, SME
Alyx Technologies, Inc.
(813)

32. Resources
National Archives and Records Administration – An Introduction to Financial Management for Grant Recipients, June 17, 2015
State of Florida – Department of State – Division of Cultural Affairs
State of Florida General Records Schedule GS1-SL for State and Local Government Agencies, June 19, 2015
Executive Order 13556
GP|Solo “Law Trends and News,” Volume 2 No. 2, David Zachary Kaufman, Feb. 2006
Federal Rules of Civil Procedure 34
Zubulake v. USB Warburg, LLC,