When does a document shift from being subject to the regular course of business records retention schedule to falling under a legal hold?

Traditionally managed as separate aspects of corporate governance -- records management for business purposes and evidence management for legal matters -- both forms of record management can be much more efficient when linked. When unified through a shared process-oriented approach, records managers, IT, and General Counsel can together leverage records management best practices and document capture technologies, while satisfying the preservation and discovery requirements of a legal matter.

It used to be so simple!

At one time, capturing and storing business documents were relatively straightforward tasks. Everything was originally in hard copy, whether as formal documents or scribbled notes. The documents deemed worthy were stored and remained available. Businesses would keep these documents for a specified period of time (or merely until the file cabinets were bulging), then box them up and send them to a storage facility. If litigation arose, boxes could be retrieved and physically searched for responsive material. You could more easily determine relevant content.

In the paper world, all content could become evidence. In the electronic world, evidence can extend to more than "all content" to now include drafts, fragments, and documents users might have electronically "thrown away."

In the electronic era, most content isn't categorized or indexed. Instead, it sits in people's e-mail "in" boxes, on network file shares, back-up tapes, laptop computers, personal digital assistants (PDAs), voice mail, and even cell phones. As a result, the amount of effort to classify, sort, and find relevant data has increased at an unprecedented rate.

People now type side comments and emotional "flames" into e-mail they would never have written in a paper memo. The filters of the paper systems are gone, and the price for being unprepared is high. In the infamous Zubulake case, what started as a routine single plaintiff employment discrimination case resulted in a verdict against the employer of US$9 million plus $20 million in punitive damages largely attributable to the employer’s conduct in discovery. More recently, a Florida state jury ordered investment bank Morgan Stanley to pay $1.45 billion in a default judgment to financier Ronald Perelman. The burdens in the case shifted because the judge was angry at Morgan Stanley and counsel for their electronic discovery behavior.