Title: Complying with the Law:
Author: xxxxxx
Last saved by: David Bearman
Company: Archives & Museum Informatics

Electronic Records Research 1997: Resource Materials
Compilation Copyright, Archives & Museum Informatics 1998
Article Copyright, Author

The Fourth Leg of the Chair

by Robert F. Williams
Historically, the production of computer-generated documents has had three objectives: Produce them faster, cheaper and prettier -- on either paper or microfilm.  Increasingly, “prettier, cheaper and faster” are like three legs of a four-legged chair -- inadequate.
With the advent of large-capacity optical storage and magnetic tape file servers, an ever-increasing volume of document-based information is no longer being retained by users, instead by the IS department and distributed electronically “on demand” to users.  This paradigm change in where computer-generated documents are retained, has resulted in a concurrent change in who is responsible for their ongoing management -- how they are stored, who has access to them, and when they are to be destroyed.  Previously, users would receive computer-generated paper from IS; now they retrieve their documents from IS.
With the new file servers and with the storage of these same documents in an electronic form, the traditional distribution of paper and microfilm to internal users is being significantly changed--dramatically reduced and, in many instances, entirely eliminated!  However, what is not as well known is that, there is also a change in who is responsible for retaining and retrieving these records -- for complying with the law.
The traditional objectives of producing computer-generated documents faster, cheaper and prettier have been superseded by a new primary objective: legal compliance and admissibility -- this is the all important “fourth leg of the chair.”
Knowledge of the law is essential for seven reasons:
	1.	Historically, records have been retained in order to prove the positive.  As the “corporate memory,” records were created and retained in anticipation that at a future point in time a small percentage of an organization’s documents would be needed to resolve a dispute favorably.  Typically, proving the positive requires only a limited number of documents, but they are absolutely essential for achieving successful resolution of a dispute.
	2.	In today’s increasingly regulated business environment, document-based information is assuming new levels of importance: moving beyond “proving the positive” to proving the negative -- documenting patterns of behavior through records.  Creating records for regulatory compliance is an integral part of almost every business.  More and more of these records are computer generated.  Collectively, because they document all of a business’ operational activities, they reflect the patterns of behavior that are necessary to prove the negative.
	3.	Every business has a need for security and disaster protection.  An important component of a business recovery plan is the duplicate, physically segregated files of important records.  This recovery component is so important that many regulations require offsite security copies.
	4.	ISO 9000 certification is becoming a necessity for doing business on an international basis.  The ongoing ISO 9000 certification process is rigorous and requires extensive levels of recordkeeping in order to document the consistency of quality.  Although ISO 9000 is not a legal requirement, per se, the implications of losing an ISO 9000 certification will be very consequential.
	5.	In today’s highly litigious society, the possibility of discovery action by legal adversaries constitutes a major business problem.  Not only is it very expensive to respond to discovery requests, it also is extremely time-consuming.  Therefore, electronic records must be organized and maintained in accordance with the highest professional standards in anticipation of any legal requests.
	6.	On December 1, 1993, Rule 26 of the Federal Rules of Civil Procedure was changed to require voluntary disclosure of documents (including electronic records) that are relevant to a federal court case.  In addition, the new rule significantly reduces the time allowed to produce pertinent records.
	7.	Finally, businesses today must be able to demonstrate “reasonable and prudent good faith” efforts regarding their records management practices.  Recent changes in the criminal code now stipulate substantial penalties and the potential of jail for executives of businesses that fail the “reasonable and good faith” test.
The consequences of poorly managed electronic records include loss time, legal expenses, fines/penalties, withholding of certifications, adverse press, competitive disadvantages, shutdowns and the potential of jail.  Accordingly, IS must now understand that it is no longer just producing information.  In operating large document-based file servers containing information, IS must take the law into account and realize that the law is the most important of the chair’s four legs.