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The much-anticipated Sedona Guidelines have now been released for public comment. The product of a distinguished and broad-based working group, these guidelines integrate the emerging legal requirements for records retention with current electronic information technology and records management practices. The electronic age has brought about a sea change in the creation, dissemination and storage of exponentially greater volumes of information. Previously unthought-of challenges face those who manage huge flows of information in all kinds of organizations. Failure to allow for appropriate retention and access can result in severe penalties for evidence spoliation and unexcused failures or delays in production, including fines as high as $25 million, default judgments, civil contempt and criminal liability. These penalties are imposed not only on organizations, but also on their personnel as individuals. Even if no “smoking gun” is involved, there are enormous costs of accessing and reviewing exploding quantities and diverse formats of business data. The challenge lies in managing information that has ongoing value to an organization as assets.Viewed as assets, records have value to the business only to the extent that they can be retained and accessed to achieve a business’s goals and meet its legal responsibilities. To design and implement a successful records retention program requires the participation of several constituencies: business, legal, information technology and records management personnel. These constituencies historically have not coordinated their efforts, or, for that matter, even communicated using a common language. So a records retention policy issued by the law department might demand destruction of information with few exceptions after a given number of years, while the IT department might be concurrently beefing up its efforts to back up or archive data from all storage media virtually forever. The Sedona Guidelines, subtitled “Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age,” aim to reflect the key concerns of the varied constituencies involved in records retention and retrieval. The authors and contributors included judges, public- and private-sector lawyers, computer and records management consultants, archivists and educators. A working group has labored for the past two years as an outgrowth of meetings sponsored by the Sedona Conference, a nonprofit legal research and educational institute. The Sedona Guidelines may be summarized as follows: An organization’s information and records management policies and procedures should be reasonable, realistic, practical and tailored to the circumstances of the organization.A boilerplate policy document will not serve any particular business well unless it is customized and employees can execute it with relative ease. At the other extreme, drafters should beware of being caught up in a quest for the perfect policy. According to the guidelines, “No policy can be drafted that will be truly omnibus — there is simply too much information in too many places to cover every possible variation of facts and circumstances. Good-faith efforts to develop and implement a policy should be viewed as reasonable.” An organization need not retain all electronic or hard-copy information ever generated or received.Backed by considerable scholarship, the Sedona Guidelines conclude that destruction is “an acceptable state in the information lifecycle” and that systematic deletion is “not synonymous with spoliation.” What is important, however, is that organizations retain information for as long as needed to satisfy legal mandates and help achieve other business purposes. The policies and procedures should address not only retention, but also the proper creation, identification, retrieval and ultimate disposition or destruction of records.There is little value in retaining information for a required time but not being able to access that information efficiently, whether for business purposes or for electronic discovery. The policies and procedures must mandate the suspension of destruction as necessary to preserve evidence for actual or reasonably anticipated litigation, governmental investigation or audit.The guidelines document that courts are raising the bar on a litigant’s ability and duty to safeguard relevant data. Here the guidelines support the proposition that consistent application of policies and procedures, and documentation of efforts to educate employees, may help defend the organization’s practices. Responsible handling of information and records should be considered a core value of an organization.The guidelines observe that “a policy in name only may be worse than no policy at all.” Support of senior management and a multidisciplinary approach are critical to the success and defensibility of the policies and procedures. Another publication from participants in the Sedona Conference, which deals with electronic document production, is already being cited with approval in court opinions (e.g., Zubulake v. UBS Warburg, 220 F.R.D. 212 (” Zubulake IV“) (S.D.N.Y. 2003)). Because of the diverse composition of the working group and the quality, practicality and scholarship of the guidelines themselves, it is anticipated that the guidelines will enjoy comparable acceptance and recognition. The Sedona Guidelines are available for public comment through March 1. They may be downloaded from www.thesedonaconference.org. Charles Ragan is a partner in the San Francisco and Palo Alto offices of Pillsbury Winthrop, where his litigation practice includes advising clients on electronic discovery and document retention. He is a co-editor in chief of the Sedona Guidelines. He can be reached at [email protected]. Robert James is a partner and Amy Smolen is an associate in the San Francisco office of Pillsbury, where their corporate practices include the design and implementation of compliance programs. • Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact News Editor Candice McFarland with submissions or questions at [email protected]or go to www.therecorder.com/submissions.html.

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