Let’s be frank: most in-house counsel do not want to own records management. From my experience, most counsel have been brought to the records management table through sheer necessity, having recently suffered from a huge e-discovery bill due to massive information over-retention or because of a failed audit. Likewise, legal departments eschew owning anything but the smallest part of a records program such as policy development. They’d rather pass the execution, program ownership and, most importantly, the resultant headcount burden to another department. “Hey, once we publish a policy let’s get IT to own this!”
I understand and sympathize with this sentiment. Owning traditional records management—narrowly-focused, regulation-based schedule development and hard-copy record storage—is something of a career dead-end for in-house counsel. Most up-and-coming attorneys would prefer to work on something that they see as more important for the business.
While traditional records management may be somewhat limiting, a larger information governance program that address not only policies but also execution, defensible disposition, information access, discovery and privacy compliance may paradoxically offer career-enhancing opportunities for legal professionals.
One of the hottest areas in corporate legal circles these days is Foreign Corrupt Practices Act (FCPA) compliance. The headlines are full of companies facing huge fines due to their failure to keep books and records that accurately and fairly reflect the transactions of the corporation and to devise and maintain an adequate system of internal accounting controls. For FCPA compliance, this requires managing not only what we call “big R” records, which must be retained for a period of time to satisfy regulatory or legal requirements (expense reports, for example) but also “little r” records which there is no specific regulatory mandate to keep, like e-mails to subcontracting partners to ensure FCPA compliance and defensibility. Good information governance is a key component of FCPA compliance and defensibility, and far-thinking organizations are expanding their records program.
Another hot area is intellectual property management, as not only high technology but other types of companies find the need to both defend and assert their intellectual property rights. IP ownership can be established by the early e-mail conversations between engineers, for example. Companies are tuning their records programs to separate the “wheat” of IP from the “chaff” of unimportant e-mail noise, providing much-needed leverage over IP disputes.
The perennial challenge for legal departments is to show that they are not solely cost centers, but rather that they bring operating value to the company. Employees are being buried under a mountain of electronic data, forcing them to spend hours searching for relevant information and sapping their productivity. In what one in-house counsel called “the money slide,” good records-turned-information-governance programs enable employees to easily sort out the important and useful from the old, unimportant and useless. Good policies drive effective strategies that increase overall employee productivity and boost profitability. The legal department has an opportunity to show how they can make everyone’s job easier.
Narrowly-defined legacy records programs hardly get anyone excited. But reducing e-discovery expense, strengthening data privacy, promoting defensible deletion, lowering the cost of storing paper and electronic documents, assuring Payment Card Industry (PCI) compliance and managing retiree knowledge make a difference to the company’s bottom line. The scope and costs of these information governance programs tend to be larger than initially anticipated, but the benefits are real.
Who wants to lead this dance? Sometimes in-house counsel’s path to interesting and important projects leads through the terrain of a broadly-scoped records management program. Are you really sure you want to hand this off to IT?
- Career-minded in-house counsel should think twice before giving away execution of the records management program.
- Effective and defensible FCPA compliance and IP management require good information governance.
- Increasing the scope of traditional, narrowly-focused records programs to address wider information governance issues can greatly increase the value of these programs to the organization.
Legal information is not legal advice
Contoural provides information regarding business, compliance and litigation trends and issues for educational and planning purposes. However, legal information is not the same as legal advice — the application of law to an individual or organization’s specific circumstances. Contoural and its consultants do not provide legal advice. Readers should consult with competent legal counsel for professional assurance that our information, and any interpretation of it, is appropriate to each reader’s particular situation.