An Education in Records
What You Don’t Know CAN Hurt You

"In Aemailpril, 2005, UBS lost the high profile case Zubulake v. UBS Warburg, a discrimination and retaliation suit. The plaintiff, Laura Zubulake, a former salesperson at the company’s Stamford office, alleged her manager had undermined and removed her from professional responsibilities, excluded her from business outings, belittled her to colleagues and generally treated her differently from the men. Also, she alleged that there were several sexist policies in place, such as entertaining clients at strip clubs, that made it difficult for women to foster business contacts with clients. An important event in the case was that UBS had not preserved relevant email after the litigation hold had been in place. Federal judge Shira Scheindlin gave the jury a final ‘adverse inference’ instruction, in part stating, ‘The fact that some UBS employees failed to preserve their email after being instructed to do so, and that such email cannot now be produced, is sufficient circumstantial evidence from which you are permitted, but not required, to conclude that the missing evidence was unfavorable to UBS.’ The jury found in favor of Zubulake on both claims and awarded $9.1 million in compensatory damages (including back pay and professional damage), and $20.2 million in punitive damages. The case was seen as a landmark in the realms of e-discovery, document retention, computer forensics and human resources." (End of cut-and paste...I promise.)"

UBS had an overactive IT manager who made backup tapes of backup tapes," explained Jan. "Every time they opened a closet or a file cabinet, they found 100 new backup tapes. Every time they opened a new tape, they found hundreds of emails that hadn’t been provided before."

It happens all the time. The IT guy has to take a laptop out of circulation, he makes a backup disc "just in case." But by doing that simple, seemingly harmless procedure, he creates liability, risks AND costs down the road.

The other problem, Jan pointed out, is that there can be information which might be related to a certain case, but you’re not allowed to produce it. Non-disclosure agreements (NDAs) have to be met, for example. Sometimes even if you CAN produce information, you can inadvertently get into trouble for doing so! "Every company has different rules for NDAs," explained Jan. It’s a complicated set of rules, different for every partner relationship. "What happens when you’re subpoenaed is one thing, what happens when you’re producing discovery is another thing. When you’re being investigated...it’s something else."

Probably due to this complex set of arcane rules and restrictions, most people do the natural thing: ignore it. "A lot of companies sign NDAs, then forget about them, because they have no idea where the information resides, which part of it is under NDA and which isn’t. I’ve seen people sign NDAs, then send very confidential information over open email connections, thereby creating HUGE liabilities," said Jan. "When the IT department makes a backup, they have no idea which content on it is under NDA or not! What they’re doing is—unintentionally—making more copies of confidential information."

I guess what I can take away from my conversations with Annie and Jan is that the missing ingredient in nearly every records management plan is... education. "You have to make everyone aware that certain files are sensitive, for the number of reasons we’ve talked about—human resource issues, NDA material, medical files," Jan concluded. "The military is accustomed to working this way... some material is confidential, some is secret, some is top secret. But they are aware of the procedures for documenting who copied a confidential document, how it was handled, what was the chain of custody, who destroyed the copy and when."

But the problem, Jan added, is, "Normal people aren’t aware of such practices."

Well, there is a bunch of education on the following pages. And what ISN’T here can be gained from talking with the participants about your records plan, your retention policies and your corporate education. I encourage you to do so.