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Corporate Counsel Section Newsletter | Summer 2015

by Jennifer Brask | Aug 14, 2015

Attend the Summer Social!

On Tuesday, August 18, 2015, from 4:30 to 7:30 PM, the MSBA Corporate Counsel Section is hosting a summer social and lawn bowling tournament at Brit’s Pub in Minneapolis. Enjoy complimentary food and drinks, while showing off your lawn-bowling skills!

The tournament will begin at 5:00 PM. To play, please form teams of four and pick a team name. The Corporate Counsel Section can also assign you to a team as well. Please notify Ryan Kaplan at ryan.kaplan@det-tronics.com of your team name and members. The Corporate Counsel Section will award prizes to the winning team!

The registration deadline is August 14, 2015, more information can be found here. This summer social is free to section members, and each member can bring one non-member free of charge by contacting Jenn Brask at 612-278-6305 or jbrask@mnbar.org. The cost is free to law students as well. This event costs $10 for MSBA members or $15 for non-MSBA members. 

 


 

Register for the Regional General Counsel Institute

The National Association of Women Lawyers presents it's Regional General Counsel Institute on Wednesday, September 30, 2015, at the University of St. Thomas School of Law. The institute aims to explore the strategies, skills, and substantive knowledge vital for in-house counsel to succeed within their entities. The institute limits attendance to in-house counsel and event sponsor representatives Attorneys from non-sponsoring law firms and service providers may register for the closing keynote session and cocktail reception only. Register at www.nawl.org/RGCIMN.

 


 

Document Retention by Elizabeth Brustad

Document retention—in particular, the retention of electronic data—has become a large issue for corporate counsel. Electronic information is found in many forms: computers, instant messaging programs, cell phones, websites, data recorders, and storage mediums. Moreover, under Rule 26(f) of the Federal Rules of Civil Procedure, parties must “meet and confer” within the earlier of ninety-nine days after filing a complaint or sixty-nine days after the first responsive pleading—thus, requiring immediate assembly of and plan for discovery.

Given the prevalence of electronic documentation and in order to streamline document retention, corporate counsel should create a document retention policy. An effective policy can help reduce the costs of unnecessary retention, facilitate access to records, mitigate legal risk, and control potential damaging effects to public image. Ass’n of Corporate Counsel, Records Retention—Critical Considerations Surrounding Records Management 2005. Counsel should note the following considerations when drafting their policies. Michael Murphy, 10 Tips for Crafting a Document Retention Policy, Corporate Counsel, Feb. 23, 2015, http://www.corpcounsel.com/id=1202718634065/10-Tips-for-Crafting-a-Document-Retention-Policy?slreturn=20150703104853.

First, counsel should use a broad definition of “document” in their policies to include conversations created in a company’s instant messenger program, e-mails connected to work sent from private accounts, and work-related text messages. Murphy, supra. An all-encompassing definition of document will help to reduce legal risk of excluding certain documents later down the road.

Second, counsel should carefully categorize documents and define how long the employee should preserve documents in each category in order to ensure particular files are easily accessible and separate from other documents. Murphy, supra. Each characterization contains a description of the process the records support and examples of the classes of records that fall under such characterization. Iron Mountain, Records Retention, Ass’n of Corp. Counsel, July 12, 2010, http://www.acc.com/legalresources/quickcounsel/rr.cfm. Many statutes and regulations require companies to retain certain documents for specified periods of time. Murphy, supra. For example, the U.S. Securities and Exchange Commission requires companies to keep communications for three years. 17 C.F.R. § 240.17a-4; Murphy, supra. Public corporations should save all audit documents and communications, including work papers and documents forming the basis of an audit or review like memoranda, correspondence and e-mails that contain opinions, analysis, or financial data, for at least seven years. 17 C.F.R. § 210.2-06; Murphy, supra. Other regulations under the Sarbanes-Oxley Act of 2002, the Internal Revenue Code, environmental statutes, and labor and employment laws include preservation rules as well.  Murphy, supra.

Sample Chart of Characterization and Retention Periods:

Characterization

Board Meeting Minutes

Accounts Payable

Executed Agreements

Transactional Correspondence

Personnel Files

Leases

Tax Returns

Retention Period

Permanent

Five years

Permanent

Five fiscal years

None

Term, plus five years

Permanent

 

Third, counsel should clearly define who oversees and who is the expert for questions on the document retention policy. Murphy, supra. The expert will likely participate in subpoena response and litigation discovery, so counsel should choose an individual competent to testify on the company’s behalf. Murphy, supra. The expert will supervise the retention and deletion process. A manager has the ability “to instruct his [or her] employees to comply with a valid document retention policy under ordinary circumstances.” Arthur Anderson LLP v. United States, 544 U.S. 696, 704 (2005).

Fourth, counsel should promote communication between employees to reflect business considerations. Murphy, supra. Counsel should consult with IT and any business units in order to create a consensus throughout the company. Mark Diamond, 5 Ways In-house Counsel Hurt Corporate Record Compliance, Inside Counsel, July 25, 2011, http://www.insidecounsel.com/2011/07/25/5-ways-in-house-counsel-hurt-corporate-record-comp.

Fifth, counsel should have a well-formed, clear, and overly inclusive litigation-hold policy to retain all relevant documentation when a company faces reasonable probability of a lawsuit or investigation. Murphy, supra. The moment litigation or regulatory proceedings become reasonably foreseeable, corporate counsel should place an immediate hold on all relevant documents and source. Client Advisory: Record Retention Policies, Carter Ledyard & Milburn LLP 4 (2012), available at http://www.clm.com/docs/6375077v3.pdf. When triggering a litigation hold, corporate counsel should make the notice formal, in writing, and thorough. Id.

Sixth, counsel should include a procedure for destroying documents in the company’s document retention policy. Murphy, supra. A corporation cannot blindly eliminate documents and “expect be shielded by a seemingly innocuous document retention policy. Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988) (citing Grumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983)). Counsel should abide by the following standard notion when determining a procedure for destroying documents: if the company knows or should know that the documents might become material at some future point, then such documents should be preserved. Id. If the opposing party challenges a document deletion, the more completely a company is able to describe exactly what document was deleted—when, how, and by whom—and that the deletion was ordinary, the better for the company. Murphy, supra. Rule 37(f) of the Federal Rules of Civil Procedure provides for a “safe harbor” for documents inadvertently destroyed despite “good faith efforts” to maintain and comply with a document retention policy. Therefore, with an effective program in place and enforced, a company has the ability to avoid negative inferences and accusations. See id. 

Seventh, counsel should review the document retention policy at regular intervals to ensure it complies with regulations and case law. Murphy, supra. Additionally, counsel should ensure that the policies continue to be simple enough for everyone to follow. Douglas Herman, Tips for Complying with E-discovery Retention Requirements, Metropolitan Corporate Counsel, June 1, 2007, http://www.metrocorpcounsel.com/articles/8428/tips-complying-e-discovery-retention-requirements. The more a policy makes sense, the more likely people will put in effort to comply with it. See id.

In conclusion, document retention policies are vital to a company’s business; a well-drafted policy—that includes the suggestions above—can mitigate legal risk and save time and money. 

Annual Report

MSBA Corporate Counsel Section
Annual Report
2016-17

 

Section Membership

As of June 29, 2017 the Section has 590 members.

Financial Status

The Section had an account balance of $25,316.29 as of April 30, 2017.

CLEs & Events

The Section hosted 8 CLE programs in fiscal year 2016-17.   

Program Title

Date

Event Code

CLE Credits

Number of Attendees

Summer Social

8/10/16

 

 

42

The Ethics and Causes of Wrongful Convictions

11/15/16

228055

1.5 Ethics

31

Antitrust Basics for In-House Counsel

12/7/16

231921

1.5 Standard

46

The History of Indian Law and Practicing Transactional Law on Tribal Land Today

12/14/16

228644

1.0 EOB
1.0 Standard

33

Winter Social

1/25/17

 

 

48

3rd Annual Corporate Counsel Institute

2/10/17

234367

6.0 Standard
1.0 EOB

76

Top 5 International Tax Mistakes Regularly Made by Business

2/23/17

234302

1.0 Standard

19

Gain the Edge! Negotiation Strategies for Transactional Lawyers

6/1/17

239509

3.25 Standard

61

  

Annual Meeting and Election Results

The Section’s Annual Meeting was held on June 20, 2017. 

The following council members were elected to serve on the Section’s Governing Council:

Gretta Hanson (2017-2020)
Stephen Ringquist (2017-2019)

The following officers were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2018:

Chair:  Jonathon Heinonen
Vice-Chair/Secretary:  Rosa Summers
Treasurer:  Frederick Dawe


Diversity and Inclusion 
Two council members attended MSBA sponsored diversity training
Supported MSBA efforts encouraging section members to complete profile information 


Other Section Accomplishments
Increased section membership by nearly 2%  

Submitted By:
Mary Dean, Section Chair
Date: June 28, 2017