There is a widespread perception that the management of electronic records in most organisations is woefully inadequate, and that gives rise many of the problems associated with electronic discovery . This perception is confirmed by empirical research presented in the professional records management literature. The research indicates that few organisations manage their electronic information with the same attention that they formerly paid to their paper documents, compounding the problems of volume and scope when the electronic records become subject to discovery. In addition, the management of conventional paper records is also suffering.

Conventional paper-based records management stressed storage for the purpose of retrieval (necessitating human application of logical indexing systems) and keeping the physical collection as lean as possible, while fulfilling the essential mission of documenting business decisions and long-term operations. Professional records managers were in an excellent position to answer discovery demands quickly, inexpensively, comprehensively, and reliably.

The demise of records management as an important part of corporate culture in the United States and the United Kingdom has been a long-term process attributable to several factors, most importantly the ascendance of computer-based information technology. Computer technology was introduced in most corporations and government offices in the 1960's by the finance departments or their equivalents. Computers were seen as tools to automate the creation of conventional paper documents, initially financial reports, statements, invoices, and the like. Once reduced to paper, the computer output was incorporated into the conventional records management process. When word processing was introduced in the 1970's and 1980's, the centralised computers were still under the control of the financial department and their subsidiary, Management Information Services (MIS). The computer was still seen as a tool for the creation of paper documents, which would then be incorporated into the conventional records management process. Drafts, back-ups, and other by-products of computer applications were considered the property of the MIS department, to dispose of as they wished, with no reference to corporate records management policies or procedures.

With the introduction of client-server networks and other distributed models of corporate computing, documents and data in electronic form took on a life of their own. Communication took place without reduction to paper, and new desktop applications, such as databases and spreadsheets, proliferated. By this time, computer technology and the data it generated was controlled by independent departments whose primary responsibility was the acquisition, application, and maintenance of hardware and software. The new Information Services (IS) or Information Technology (IT) departments had no concern for records management. As memory became cheaper, electronic data was saved on vast, unindexed backup and archival media, usually in direct contradiction to the conventional records management policy of the organisation.

The spread of distributed models of corporate computing lead to the downsizing of many corporations and government offices. Among the first staff to go were the now-marginalised and invisible records managers. With the reengineering of business processes, the secretaries and clerks (who previously served as shop-floor enforcers of the records management policies), were also made redundant. In many organisations, professional records management disappeared at the same time that virtual documentation came to dominate corporate business processes.

Corporate culture has been slow to recognise the consequences of the demise of records management. The literature of the past three to four years, however, indicates that corporations and government agencies are beginning to recognise that electronic document proliferation, particularly the retention of unnecessary and potentially damaging e-mail, must be checked. Still, only a minority of major corporations and institutions in the United States and the United Kingdom have operating electronic records management programs.

The predominate response in the corporate world has been to look to the IS and IT department for technological solutions: Software that will somehow identify mission-critical information and store it properly while weeding out the irrelevant or outdated information. So far, no solution has been developed that fills the role of professional records management.

3. The Policy Implications of the Demise of Records Management

The demise of professional records management may have serious policy implications for electronic discovery. Unless sound management techniques are applied to the ever-expanding mass of electronic data and communications, or a technological breakthrough is made, litigants will face ever-spiralling discovery costs, which the courts will be powerless to control. Case-by-case application of the proportionality principles of both the American in British civil procedure rules will severely curtail discovery in many cases. As discussed above, the net effect may be to reward those organisations with inadequate corporate controls, while subjecting others to a broader scope of discovery, simply because they have the organisational ability to handle it.

Therefore, the courts, when faced with litigants objecting to the costs of electronic discovery, must develop tests to discern between those costs which are self-inflicted and those which are truly out of proportion with the stakes of the case at hand. An objective test would be to determine what records management capabilities are reasonable for a party to possess, given the day-to-day needs of the organisation, the developing state-of-the-art in records management and information technology, and the stakes of the case.

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