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Data Retention: the "To Be"

    The development of the “To Be” organizational state results in the collaborative project’s final deliverables: 1) the ERM policy; and 2) the technical implementation framework. The first order of business is to review and summarize the “As Is” documentation. As part of this process the joint team has responsibility for working through items that require clarification. The summary of the “As Is” state is an interim project deliverable and a project milestone and check point.

    Notice that deliverables recommended by this tutorial are produced via the collaborative project alluded to in the Intersection of Law & Technology section. The project team must of necessity include key organizational stakeholders (e.g. CIO & General Counsel) as well as outside counsel. The resulting policy will impact the entire organization. Without "buy in" from all levels the deliverables will fail to meet organizational objectives.

    The concept of a project embodies well defined roles, responsibilities, tasks, milestones and deliverables. A project based approach ensures that the resulting policy is not developed in an organizational vacuum.

    The ERM Policy

    As discussed previously, the ERM policy will provide the governance mechanism that controls and guides the technical framework. It will contain all the necessary legal and operational governance mandates required to underpin the framework. The ERM policy will also list all legal authority (i.e. statutes and regulations) that support such governance. However, for business reasons, the resulting policy may allow for retention schedules that provide for longer time frames than required by law. The final decision with regard to retention schedules by record type lies with the customer organization.

    The Technical Framework

    The technical framework consists of a set of system recommendations that, when implemented, will enforce the governance structure of the ERM policy. It is envisioned that over time all systems of record will be tied to the technological enforcement strategy. Essentially, the technical framework will provide system guidelines for archival and purging of business records once these records have reached their end of life. It will also describe a systematic procedure for dealing with issues such as “litigation holds” that may require intervention.

    In addition, the technical framework will make recommendations with respect to the management of record types that currently do not have a respective system of record associated with them. This is likely to include scanning/imaging of paper records in order to achieve a 100% electronic business record environment, if at all possible. Finally the technical framework will contain a description of the roles and responsibilities of key staff members required to administer it.

    The Challenge of no System of Record (SOR)

    As previously mentioned, many line of business records (e.g. contracts) simply have no system of record at all. These documents are created in word processing applications and stored in various electronic folders. It is not an overstatement to say that most organizations do not have folder naming conventions let alone a taxonomy for managing unstructured records. It is also safe to say the most business executives cannot point to the electronic storage location of the most current version of executed instruments relied on to run day-to-day operations.

    For large businesses, and many mid-size businesses as well, these documents are numbered in the hundreds of thousands, if not more. Imagine the burden of producing documents in response to a discovery request that span multiple line organizations across geographical boundaries (e.g. as is often the case in a class action suit). This is a problem of inordinate and unmanageable complexity. Under these circumstances it is virtually impossible for an organization to state with any degree of certainty that the requested documents have been produced.

    It must be understood that there are no "silver bullet" answers to this problem. It is only through the combination of process and technology that the problem as stated can be managed. Fortunately, significant progress has been made with respect to the maturation of a set of technologies that are categorized as Enterprise 2.0 (e.g. as embodied in enterprise wiki's and Microsoft Sharepoint). These technologies provide foundational support for the development of SOR's for unstructured data. Many leading edge organizations are now moving in this direction.

    The "To Be" Bottom Line

    It would be misleading and inaccurate to suggest that at the conclusion of the proposed project an organization has a complete solution. Why? Because instrumenting the policy across all SOR's is a non-trivial and time consuming task. What an organization has at the conclusion of the aforementioned project is a road map for arriving at a final destination. A methodology for attacking a complex problem. Once a methodology is in place then point solutions can be selected depending on how well they fit within the system framework.


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