Section 8: Risk Management and Electronic Records
Legal Use of Electronic Records
The Texas Rules of Civil Procedure allow the use of electronic
records as evidence. Each judge may admit or exclude evidence based
on the court's independent evaluation. The court must believe that
the records admitted are trustworthy, i.e., that they clearly and
accurately relate the facts as originally presented or in summary
form. Changes in the Federal Rules of Civil Procedure (FRCP) in
recent years have more specifically defined the requirements governing
the appropriate management of Electronically Stored Information
(ESI) in relation to legal discovery. Penalties for failure to meet
those requirements can be severe.
Since electronic records have systemic vulnerabilities, the
following basic efforts can help to assure their trustworthiness:
- Maintain written procedures related to digital imaging that document the handling of records in the routine course of business. Dated procedures should describe when in the record’s life it is converted, quality control measures employed to verify the digital image, and disposition of the original electronic or hard copy record.
- Limit access to documents/records being retained electronically to a single custodian or the system administrator and establish security measures to prevent alteration of the record con- tent or properties.
- Maintaining a current records retention schedule can have an important impact on court proceedings by documenting a record's existence and retention period. The fact that a record is on the schedule shows that the department produces it regularly. Refer to Chapter 3, “Records Retention Schedule”, for procedures to update the schedule.
- Records Management is the Office of Primary Responsibility for maintaining the 1420 Records Destruction Form for a retention period of 10 years. Courts generally accept the defense that records have been destroyed under an approved records retention schedule. This is an especially effective defense if there is documentation over a period to prove that the records have been routinely destroyed in compliance with the retention period specified on the schedule. See Chapter 11, “Archiving and Destroying Records” for procedures related to completing the 1420 Records Disposition Form.
- Official records under a legal investigation should remain in their native format.
Preparing for Discovery for Electronic Records
The Office of General Counsel issues policy and procedures for litigation holds in the
. When issues a litigation, hold notice to preserve documents relevant to a case, routine document retention/destruction policy is suspended to insure the preservation of relevant documents.
A litigation hold notice does not require immediate production of records. What it does require is:
- Location and identification of all relevant records/documents in any medium. Current file plans can help to locate the records. This step can also include locating records on backup media, portable devices, or voice mail.
- Preservation and retention of relevant electronic documents in their native application to preserve document metadata. If documents were routinely scanned or otherwise retained in a way that lost the electronic metadata before the litigation hold, there is no need to attempt to reconstruct them. Electronic records existing in their native applications at the time the litigation hold is issued, or created after the litigation hold, must be preserved in their native application.
- Security measures are required to preserve the authenticity and integrity of the electronic records.