There are 3 steps for creating a Library Services Platform, a type of library management system. Breeding stated that a library services platform is “designed to manage both print and digital content, tend to be deployed using cloud computing technologies, and make more use of knowledgebases for more efficient resource management”. The following are three steps to do this.
It is not really much of a secret that I am not a fan of New England Patriots QB Tom Brady. Those of you who follow this blog and are also fans of American Football (I am sure at least some of you exist) are undoubtedly aware of the #deflategate fracas surrounding the Patriots’ game vs. the Indianapolis Colts during last season’s playoffs. (For those of you who weren’t, the TL;DR version: The Patriots were accused playing with underinflated balls, which makes them easier to handle and catch and makes a material difference because each team brings its own balls to games.) An investigation ensued, the NFL released a report indicating that it was “more probable than not” that the balls were deflated on purpose and with Brady’s knowledge, and yesterday Mr. Brady was suspended without pay for 4 games for the 2015 season due to his role in the affair. I may or may not have declared myself “the happiest boy in the world” to my wife last night upon hearing this news.
But this post is not about Brady Schadenfreude! (Well, *mostly* not.) It is about the following nugget from the NFL’s official statement about the case:
Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
It’s a records management issue (Sort of)! I really am the happiest boy in the world. Tom Brady was asked to turn over electronic documents to help the NFL determine his responsibility in this matter, he refused to do so, and the NFL factored that in to his eventual punishment. Does that sound like sanctions for spoliation to anyone else? It sure does to me.
Now, a few caveats here: The proceedings were part of a conduct investigation strictly internal to the NFL, rather than a civil or criminal suit in open court. There was likely no formal discovery request, no “meet-and-confer” requirement, and the “Safe Harbor” rule probably wouldn’t have applied to (or protected) Brady in this case. But in its effects, this is basically the same– because Brady was unwilling to produce evidence as requested by the NFL, the investigating body made an assumption that the missing evidence would be materially harmful to his case, and altered the punishment accordingly. It was “a culpable failure to preserve and produce relevant electronically stored information, and [presented] a reasonable probability that the loss of the evidence has materially prejudiced the adverse party” , which the Sedona Principles explicitly calls out as reasons for courts to consider spoliation sanctions.
The upshot of all of this: when you’re talking to your “front line” employees, name-dropping Zubulake and the Sedona Conference isn’t going to mean much to them in terms of legal responsibilities to produce electronically stored information and/or destroy records according to defined retention schedules. Name dropping Tom Brady, on the other hand, may be another story. “Tom Brady’s punishment was made more severe by his failure to cough up emails and text” seems likely to at least get their attention, and lets you draw direct connections to the records they are producing and maintaining for your organization.
Yes, it’s true that the “sanction” in this case is based on the NFL’s internal judgment rather than the Federal Rules of Evidence, and so the parallel isn’t exact. If your employees know enough to point this out, a) I’m impressed, and b) you do need to have an explanation of how the law re: their public records and/or discovery responsibilities differ. That said, I won’t tell if you won’t.
Peter Kurilecz brought to my attention on Twitter this lovely little nugget about possible new precedent for discovery of electronically stored information (ESI). For our readers who are new to the records management (or legal) profession, discovery is a phase of civil procedure in which parties disclose records relevant to the case to the other party. This is not an optional step in the process; in most cases, the attorneys of the two parties in a civil suit will have a “meet-and-confer” session in which they agree on the terms of what records will be produced. This can be either a general request (“Give me every email you have relating to John Smith” or a specific set of keywords, depending on the level of granularity sought. The author of this piece, Ralph Losey, suggests that future cases will tip towards the specific:
…[M]ore and more courts are requiring the responding party to go the extra step and disclose what searches they did before they concluded that no responsive documents existed. Do not expect that these efforts will always be protected by attorney work-product confidentiality. Expect instead that you will be asked to disclose your search efforts.
This is potentially a huge amount of extra work for both records managers and legal teams. In particular, if your search methodology is particularly lacking, or if there is reason to believe the records being sought were destroyed improperly, your institution may have to pay spoliation penalties, or have an “adverse inference” lodged against it (in other words, the court will assume the documents were destroyed because they showed some measure of guilt.) Famously, accounting firm Arthur Andersen had a huge judgment rendered against it for advising its employees to improperly dispose of documents; in the Records Management world, there is the Zubulake case, which set a number of important case law precedents on spoliation, including the ability to impose sanctions for spoliation of digital material, often referred to in legal contexts as ESI (electronically stored information). Needless to say, spoliation is a Very Bad Thing.
“But Brad,” you say, “isn’t this a legal issue, and therefore my institution’s lawyers will know about it?” Well, yes, but that doesn’t mean you don’t have to know about these issues. As a records manager, your creation of records schedules is in large part allowing your institution (and employees thereof) to defensibly delete records. Proper records management allows your institution to invoke Safe Harbor rules, which reduces your institution’s legal liability if they were following records management procedures. Note, however, that the mere fact of having records schedules isn’t enough to invoke this principle– Arthur Andersen, after all, had records schedules in place. Rather, your institution must be following the records schedules as part of the course of regular business.
What this means for you, the records manager, is that your efforts to educate your employees are actually an essential part of protecting your institution from risk invoked by destruction of records. The fact that you are out there instructing employees to follow retention schedules, manage email as records, and only keep documents for as long as their retention schedule specifies, is itself evidence that your institution is properly following records management procedures. As such, you can make a case that a robust records management program reduces the risk of legal action by its very existence. Plus, if records are being destroyed routinely and organized in a fashion that makes them easier to find, that’s less work that the legal team has to do when a request does come in!
(Having said that, “Do this or you’ll get sued” is not always the best argument to make when you’re trying to get buy-in at lower levels, as I discovered when I started at UWM. But that’s another post.)