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Comply or Die: Corporate Record Keeping in a Digital World
Although compliance is generally thought of in a regulatory sense, every corporation that could be involved in litigation needs to consider the implications of how and what information is stored. In a sense, heavily regulated industries such as health care, securities, banking, and commodities are in a better position since the specifics of record keeping are set out in great detail. All industries that interact with the government can assume that their time will come. Other corporations may not discover whether they are adequately preserving information until they are faced with a discovery request. In either event, failure to comply can have dire financial consequences. See The Cost of Non-Compliance.)
There are three recent laws that have specific requirements for the electronic retention, protection and dissemination of information: the Gramm-Leach-Bliley Act enacted in 1999 (GLBA); the Health Insurance Portability and Accountability Act of 1996 (HIPAA); and the Sarbanes-Oxley Act of 2002 (SOA). GLBA and HIPAA hold affected enterprises accountable to protect private information while SOA requires companies that issue public securities to establish and maintain internal controls over their financial reporting systems and assess these controls' effectiveness in reports to the Securities and Exchange Commission (SEC).
Management is directly responsible under these acts for creating, implementing and overseeing each of these laws. Failing to comply, or trusting the IT department to take care of this, can result in civil and/or criminal penalties. For example, fines for ignoring a specific requirement under HIPAA can reach $25,000 per violation; under SOA a corporate officer who knowingly signs a false financial report can be fined up to $1 million and face as many as 10 years in prison; and GLBA authorizes individual actions against banks and financial institutions up to $1000, with damages available up to $500,000 for a class action.
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