What exactly is "the law" and how does it affect the creation, maintenance, use, and disposition of business records? An understanding of these basics--how the U.S. legal system works; how "the law" by way of statutes, acts, and case law, can affect how records are used and maintained; and how to conduct legal research to ensure that retention schedules meet their legal and regulatory requirements--is essential to the development of legally acceptable, compliant records and information management (RIM) programs.
Fundamental to understanding the legal system is a working knowledge of commonly used terms. The sidebar "Legal Terms RIM Professionals Should Know" provides definitions of those terms used in this article, but free online legal dictionaries are also available, such as at http://dictionary.law.com/or at www.duhaime.org/dictionary/dict-l.aspx. Keep in mind that some of the terms provided may have both a state and a federal component and that the examples and references given may be federal only. It is important to understand the difference between the state and federal requirement and which may apply in a particular case.
Conducting Legal Research
The first step in determining legal retention requirements is to conduct legal research. As a general rule, the vast majority of all business records created by a company have no legal or regulatory retention requirement. Companies in highly regulated industries, such as pharmaceuticals or financial services, may have slightly more records that do. The first step in conducting legal research is to determine if the records fall under an authoritative entity, usually a government or regulatory agency (federal, state, or local). Records may not have a federal requirement but may have a state or local requirement, so it is imperative to check all sources.
State and Industry-Specific Requirements
Uniform rules, which help to standardize laws and procedures, are a good starting point for researching applicable state laws. These rules are established in the United States by The National Conference of Commissioners on Uniform State Laws (NCCUSL) www.nccusl.org/Update/DesktopDefault.aspx?tabindex =2&tabid=60, a non-profit, unincorporated association comprising state commissions on uniform laws from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
When adopted by the NCCUSL, uniform rules are provided as model acts or laws that states can either adopt as written or revise and adopt. Just because an act is adopted by the NCCUSL does not make it law in any jurisdiction until it has been adopted by that jurisdiction's legislative authority. Some of the laws or acts most familiar to the RIM community are the Uniform Commercial Code (UCC), the Uniform Electronic Transactions Act (UETA), and the Photographic Copies as Evidence Act.
Uniform rules differ from those promulgated by federal legislation. For instance, there are Uniform Rules of Evidence, which apply to proceedings in state courts, while the Federal Rules of Evidence apply to proceedings in federal courts. While many of the rules are virtually the same, as the Uniform Rules of Evidence closely follow the Federal Rules, there are some differences. There are some states that have not adopted the Uniform Rules of Evidence and have other evidentiary rules in place; these can be found by researching the state code, statutes, or administrative rules. The best method to determine what rules apply to your state--or states--is to request that information from in-house counsel.
Free Research Resources
Some recommended free resources available to assist in legal research include:
* National Archives and Records Administration (NARA) at www.archives.gov provides links to statutes and regulations regarding federal records.
* Code of Federal Regulations and U. …