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Bradford L. Stevens Partner St. Louis, Missouri

Email bstevens@spencerfane.com Phone 314-333-3943 Fax 314-862-4656

Bradford L. Stevens chairs the Tax & Estate planning group of the St. Louis office. He serves his clients by implementing estate and business plans that reflect the client’s goals, hopes, dreams and expectations. As a business and estate planning counsel, he crafts plans for individuals and businesses to help them succeed and prosper. A native of St. Louis, his roots are deep in the community. Brad practices in the areas of estate planning, tax, probate and business law. He is a frequent lecturer to various organizations and has given numerous seminars to accounting professionals, financial planners, insurance professionals and the public. He is a founding member and currently serves as President of the e.Planners Educational Alliance, a non-profit educational think tank. The purpose of the Alliance is to expand estate planning knowledge and expertise of its members in order to serve the needs of clients and the dignity of the legal profession. Brad is a coauthor of How to Protect Assets during Life and Avoid Estate Tax at Death (2002) and Trust and Asset Protection Alternatives in Missouri (2000). He also coauthored a Practical Skills Workshop on Living Trust - Centered Estate Planning (1994) and Missouri Practice Probate (1992). He is a member of the Probate and Trust Section of the Bar Association of Metropolitan St. Louis, the Probate and Trust Committee of the Missouri Bar, and the Real Property, Probate and Trust Section of the American Bar Association.

Expertise Business and Estate Planning

Publications Developing a Business Plan for After You've Passed On Transitions - Who Should Be the Beneficiary of Your IRA Deductibility of Legal Fees Non Probate Transfers Estate Taxes Are Still in Limbo The Emotional Side of Estate Planning

Professional Associations and Memberships

PRACTICE AREAS Asset Protection Planning Financial Services Probate & Trust Litigation Tax & Estate Planning Tax Exempt Organizations Tax Planning/Tax Controversies

BAR ADMISSIONS Missouri

EDUCATION Washington University School of Law

RELATED NEWS Brad Stevens Featured in St. Louis Business Journal


Attorneys & Counselors at Law

Some General Thoughts on Record Retention/Destruction Policies As a public service to the non-profit community of the Greater Kansas City Metropolitan Area, the law firm of Spencer Fane Britt and Browne LLP has created this general overview of record retention and destruction policies. This is not intended as legal advice and any organization creating its own record retention and destruction policy should seek guidance from counsel addressing its unique circumstances.

Why Have a Record Retention/Destruction Policy? 1. Provides Cost Savings and Operational Advantages • Many liability insurers require a policy or will give substantial discounts if you have one. • Prevents destabilizing your electronic storage system by reducing the amount of electronic data. • Reduces storage, security and technology costs. • Leads to a more organized and efficient information system. • Ensures that necessary records remain accessible.

Spencer Fane Britt & Browne LLP is a Midwest law firm with offices in Kansas City, St. Louis, Omaha and Overland Park. Our lawyers have world-class knowledge and expertise, but provide services with a Midwestern sensibility. We have the ability to handle your most complex matters with creative and aggressive solutions that strengthen and grow your business.

2. Ensures Compliance with Legal Record Retention Requirements • Ensures compliance with all regulations and statutes mandating record retention periods. • Ensures compliance with the legal duty to preserve records related to ongoing or probable litigation, investigations or subpoenas, including those duties imposed by Sarbanes-Oxley.


RECORD RETENTION AND DESTRUCTION POLICIES 3. Provides Legal Protections: Only a “valid” retention policy provides legal protections • A “valid” policy legitimately reduces the volume of records and fewer records reduce litigation, subpoena and discovery costs related to the time and burden needed to search for potentially relevant material. (The largest component of legal costs is records review by attorneys. Review of unnecessarily retained records is 100% waste.) • A “valid” policy reduces the likelihood of unknown poorly worded records. E.g., the badly worded e-mail written years ago by a low level employee that had no relevance to a decision but is used by the opposing attorney to claim devious plots and conspiracies. • A “valid” policy reduces the likelihood of legal sanctions if, during litigation, the opposing party complains that certain records were improperly destroyed. • A “valid” policy establishes a “routine system” for record destruction, which is a prerequisite for obtaining a “safe harbor” from many legal sanctions. • A “valid” policy provides grounds for establishing a record’s admissibility in court as legal evidence.

Three Components of a “Valid” Record Retention/Destruction Policy 1. The Policy Must be Written: • A written policy establishes proper authorization to destroy records.

•T  he policy should cover all information stored by any means including paper files, electronically stored information and transient information such as voice mail.

2. The Policy Must be “Reasonable” • A reasonable policy has only two legitimate goals: (1) To keep records that the law requires, or are useful to guide future business operations; and (2) To eliminate all outdated and useless information. • Adopt or change a policy only for bona fide operational purposes and use only objective decision criteria. The reason for adopting or changing the policy must be consistent with the two legitimate goals and must not be directed at improperly destroying problematic records.

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RECORD RETENTION AND DESTRUCTION POLICIES • Valid reasons to modify a policy include: new regulatory retention requirements, a change in operations, an analysis identifies a need for change or the implementation of new software/hardware. • Never adopt a policy with a goal of eliminating information for threatened or anticipated litigation. • The retention period for each category of record must be tailored to and reasonable in light of the organization’s circumstances. • The policy must be realistic and practical. Employees will not follow an impractical, burdensome or overly complex policy. 3. Apply the Policy Systematically, Uniformly and Consistently • The policy provides no protection if it is not routinely enforced or is left dormant and is suddenly energized when a subpoena or litigation threat arises. • Routine reminders to enforce the policy or routinely designating certain days or blocks of time to focus on record retention or disposal are normal. • The policy provides little protection if different people in similar circumstances apply the same policy provision in substantially different ways. • It is inevitable and acceptable for individuals to have subjective latitude in determining what to keep and what to destroy. The less subjectivity, however, the better.

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RECORD RETENTION AND DESTRUCTION POLICIES

Suggested Contents in a Record Retention/Destruction Policy • Policy Purpose: The reason for the policy:

Sample Language: This policy was approved by [ ________] on [____]. It is the [ ______ ]’s policy regarding the retention and disposal of all business records and other records. The purpose of this policy is to ensure that necessary records and documents are adequately protected and maintained and to ensure that records no longer needed or of no value are discarded at the appropriate time. Records outlined in this policy include paper, electronic data (including e-mail) and voice mail records regardless of where or how the record is stored.

• Retention Schedule: A retention schedule setting forth each record category and the appropriate retention period. (see attached example). • Directive to Dispose: A directive that once a record is beyond the retention period, dispose of it in the ordinary course of business, absent a compelling reason to maintain it. • What is a “Record”: A “record” is what you decide to retain and store, as opposed to all the other information that is not maintained. The policy should provide guidance on what constitutes a record for retention purposes: E.g., the policy may define only final documents as records; not drafts or notes. • E-Mail Retention: The policy should have retention/disposal guidance for e-mails. E-mails, depending on their content, may be records that must be retained. Clearly state which e-mail the operator should immediately delete (e.g., personal e-mail). There are two general approaches for e-mail retention/destruction: • Approach 1: Automatically delete e-mail once it reaches a certain age, unless someone takes affirmative action to save the e-mail. Sample Provision: The record retention policy with respect to e-mail: To ensure effective e-mail support, standard retention periods for each type of email folder are: • Inbox folder: messages will be deleted [##] days after ‘date sent.’

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RECORD RETENTION AND DESTRUCTION POLICIES • User defined folders: messages will be deleted [##] days from ‘date sent.’ • Sent Items Folder: messages will be deleted [##] days after ‘date sent.’ • Deleted Items Folder: messages will be deleted when you shut-down your PC. • Approach 2: Save all e-mail for long time periods, unless affirmative action is taken to delete specific e-mail. This approach often requires automatic archiving of e-mail (long-term storage) once it reaches a certain age. • “How” to Retain Records: The policy should direct “how” to retain different types of records. E.g., should e-mail or final documents be printed or stored as an electronic file. Certain laws and regulations specify how records should be retained. • Specific Disposal Methods: If needed, the policy should set forth specific disposal procedures for designated records. Laws and regulations may specify the appropriate method of destroying certain records. • Review and Update the Policy: Establish a procedure to periodically evaluate or update the policy. • A Litigation Hold Policy: This is an integral part of the overall retention/destruction policy and addresses a special circumstance when routine destruction provisions must be put on hold. It is discussed in greater detail below.

Some Other Topics That May be in a Retention/Destruction Policy • Backup Storage: The policy should set forth the general procedures for backup storage. Backup storage, such as backup tapes, is only used for disaster recovery and is not intended to store records in an accessible manner.

Sample Provision:

Servers are backed up onto tapes every [##] days. The purpose of the backup is to ensure that data can be recovered in the event of damage to or malfunction of the primary storage device. Backup tapes are reused every [##] days. Once a tape is recycled, the information on it is completely overwritten.

Desktop/laptop hard drives [list all other applicable storage media] are not backed up.

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RECORD RETENTION AND DESTRUCTION POLICIES • Basis for Record Retention Periods: The legal (or other responsible) department should maintain records setting forth the basis for specific retention periods used in the policy. Statutes and regulations set minimum retention periods, operations or legal considerations may call for a longer retention period. • Data Migration: The policy could address electronic records migration, that is, the process of moving electronic records and updating storage formats when new software or hardware is installed. Records must be accessible throughout the prescribed retention period. • Outdated Data Disposal: The policy should mandate disposal of electronic records when hardware or software changes render the data obsolete.

Sample Retention Schedule Warning: This is purely for demonstration purposes and is not a complete list of record categories and the retention periods are merely examples. ACT: while active or employed; PERM: permanent Document

Retention Period

INSTITUTIONAL AND LEGAL RECORDS

Articles of Incorporation

PERM

By-Laws

PERM

Minutes of Board Meetings

PERM

Licences

ACT

Expired Licences

6 years

Policy Statements

10 years

Contracts and Agreements

ACT + 6 years

EMPLOYMENT APPLICATIONS

Job Announcements and Advertisements

1 year

Individual Applicants Who Are Not Hired

Employment Applications

1 year

Individual Applicants Who Are Hired

Employment Applications

ACT + 1 year

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RECORD RETENTION AND DESTRUCTION POLICIES

Litigation Hold Policy What is It?: Whenever litigation, a subpoena for records, or a government investigation is likely, all relevant records must be preserved, that is, disposal of records relevant to the litigation, subpoena or investigation must stop immediately. Failure to do so can result in sanctions and criminal penalties. Sample Language In accordance with our legal duties, whenever litigation or receipt of a subpoena is probable, [______] must take immediate action to preserve and to stop the destruction of all potentially relevant evidence. If a government investigation of any type is underway or even suspected, the destruction of any information potentially relevant to the investigation must stop immediately. Why Have a Litigation Hold Policy?: It is important to think through the process before it must be implemented. The best policies take the form of checklists to ensure fast and complete analysis. General Policy Contents: The policy should contain general guidance on: 1. Triggering the Hold • Identify who decides whether to implement a hold. • List events that automatically trigger a hold. 2. The Hold Team: Pre-designate the team to design and implement the hold. It usually includes in-house or outside counsel, an information systems representative, other records specialists, and a member of management. 3. Determining What to Preserve: • Gather information on the scope and nature of the litigation, subpoena or investigation. • Identify employees with knowledge or records, then, using a pre-existing checklist, interview them about the litigation, subpoena or investigation, what information is relevant and where that information is located. • Determine the relevant time period for the information. • Determine where the information is stored, including outside parties.

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RECORD RETENTION AND DESTRUCTION POLICIES • Determine “identifiers” – key terms, key people – to assist in automatic searches of electronic records. • Determine if relevant records are still being created. 4. Determining How to Preserve the Information: • Determine how to preserve each type of information. Examples: - paper – copy or physically segregate, - electronic data (1) Move to a protected area on a server or (2) move to read only media like CD. • Identify who is responsible for preserving the information, and • Identify where the information will be preserved or stored. 5. Implementing the Hold: Hold Notices • If possible, a litigation hold team member should personally inform each individual with relevant information about what to preserve and how to preserve it. • Your computer specialists will need special instructions regarding what to search for and how to preserve it. • A written hold notice is a useful method to inform large groups of the legal hold and to make a record of what each employee was directed to do. - Draft a hold notice with the assumption that it will be provided to opposing parties in litigation or to government investigators. - Avoid boilerplate language in a hold notice because provisions that were not enforced or were not followed will attract attention. • The following must be conveyed either by personal meeting or by written notice: - Generally describe the potential litigation, subpoena or investigation, - Describe what to search for, - Specifically describe what to do with located information, - Contain explicit instructions to not destroy and to act to prevent the destruction of any relevant information, - Provide a point of contact for questions, and - Include a procedure to “close the loop” in which the recipient replies with what the recipient did, what the recipient found and what the recipient did with it.

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RECORD RETENTION AND DESTRUCTION POLICIES 6. Update the Hold: The Hold Team must periodically review and update the hold; remind employees of the ongoing need to preserve relevant information.

Sample Checklist of Potential Locations For Relevant Information Paper Records File Room & Warehoused Files Employee Offices Employee’s Home Personal Calendars / Notebooks / Diaries / Planners. Third Parties (former employees or attorneys, and third party vendors) Electronic Records/Electronic Data Used in the Ordinary Course of Business: Local Office Server & Other Linked Servers Databases Office Computer – C or Hard Drive Loose Disks / CDs / Tapes / Drives / Cartridges Archived Data Blackberry or other wireless handheld devices Home Computer External Storage Devices (thumb drives, etc) Voice Mail / Audio Files Calendar / Task Lists Accounting, Time Entries or Other Financial Data Data Stored Off-Site or on Shared Servers Mobile Phones (photos, list of calls, messages) Non-standard software (Instant Messaging) or special software unique to a person Third Parties (former employees or attorneys, and third party vendors)

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RECORD RETENTION AND DESTRUCTION POLICIES

Other Related Policies • Privacy Policy: Identifies records with specific privacy rules or concerns and designates appropriate protections. • Technology Use Policy: Ensures employees know that when using the employer’s equipment there is no expectation of privacy and that personal communications or work may be searched. • Instant Messaging Policy: Tells employees to what extent they can use IM for employer business and whether the IM should be recorded. • Blogging Policy: Tells employees what they can and cannot put on a personal blog about the employer, its customers and clients. • Employee Separation Policy: Sets forth when to preserve records. If an employee departs under problematic circumstances it may be appropriate to preserve the employee’s computer hard drive for future reference. • Meta Data Scrubbing Policy: Sets standards for when to scrub metadata from communications or records. • Laptop Anti-Theft Policy: Places responsibility on individuals to safeguard laptops, requires immediate reporting of theft or loss, sets out procedures to minimize private data on laptops such as replacing private data with dummy figures or encryption. • Thumb Drive Use Policy: Tells employees when they can use thumb drives for the employer’s business and may require that computers have their USB ports locked. • Home Computer Policy: Make clear that if the employee uses a home computer for business purposes, then, in the event of threatened litigation, the employer has the right to preserve material on the computer, but only material relevant to the business use. • Equipment Disposal Policy: Ensure that old hardware that was used to store information is properly disposed of to ensure no private or confidential data are unintentionally released.

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FREE ESTATE PLANNING WORKSHOP Tuesday, February 19, 2008 12-1:30 p.m. Spencer Fane Britt & Browne LLP 1 North Brentwood, Suite 1000 St. Louis, MO 63105 TOPICS

ƒ ƒ ƒ ƒ ƒ ƒ

Probate – How to avoid it Effective use of living trusts Why a Will is not the best way to plan an estate Why joint tenancy is not a good estate plan Other advanced estate planning techniques Asset protection planning

PRESENTER – BRADFORD L. STEVENS

Mr. Stevens’ legal practice emphasizes the area of estate planning, tax, probate and business law. He is a frequent lecturer to various organizations and has given numerous seminars to legal and accounting professionals, financial planners, insurance professionals and the public. REGISTRATION

To register for this FREE seminar, please contact Stephen Carroll at 314/333-3843, or scarroll@spencerfane.com A light lunch will be served UPCOMING WORKSHOPS

Estate Planning March 25 | Noon-1:30 p.m. | Free

ABOUT SPENCER FANE

Spencer Fane’s Tax & Estate Planning Group provides personalized and sophisticated services in the areas of tax and estate planning, wealth transfer planning, family business succession planning, charitable planning, and trust and estate administration. www.spencerfane.com


Attorneys & Counselors at Law

Register to Attend One of Our FREE* Planning Workshops Please check which workshop you would like to attend:

Location of all workshops: Spencer Fane Britt & Browne LLP 1 North Brentwood Blvd Suite 1000 St. Louis, MO 63105 Phone: (314) 863-7733

J anuary 23, 2008 (noon-1:30) Estate Planning  ebruary 19, 2008 (noon-1:30) F Estate Planning  March 25, 2008 (noon-1:30) Estate Planning  April 26, 2008 (9:00-11:00am) Fiduciary Training (*a fee of $95 is required for the April 26 session) Topics That Will Be Discussed Include: •P  robate — How to Avoid it •E  ffective Use of Living Trusts •W  hy a Will is Not the Best Way to Plan an Estate •W  hy Joint Tenancy is Not a Good Estate Plan •O  ther Advanced Estate Planning Techniques •A  sset Protection Planning

P r e s e n t e r:

Bradford L. Stevens’ practice emphasizes the areas of estate planning, tax, probate and business law. He is a frequent lecturer to various organizations and has given numerous seminars to legal and accounting professionals, financial planners, insurance professionals and the public.

Registration Please mail or fax this completed registration form to: Spencer Fane Britt & Browne LLP Attn: Stephen Carroll 1 North Brentwood Blvd Suite 1000 St. Louis, MO 63105 Email: scarroll@spencerfane.com Fax: (314) 862-4656 (attn. Stephen Carroll) Call: (314) 863-7733, ext. 3843 Toll Free: (800) 862-6869

A small fee of $95 per family will be charged to cover the cost of materials for the April 26, 2008 session only. Indicate credit card type, number, and expiration date below. Make checks payable to Spencer Fane.

Registrant Information NAME

TITLE

STATE

TELEPHONE

CREDIT CARD NUMBER

CARDHOLDERS NAME

ADDITIONAL NAME(S)

COMPANY

ADDRESS

CITY

ZIP

EMAIL

MC OR VISA

EXP DATE

CARDHOLDERS SIGNATURE


Thomas E. Osterholt, Jr. Partner St. Louis, Missouri

Email tosterholt@spencerfane.com Phone 314-333-3933 Fax 314-862-4656

Tom is a partner with Spencer Fane where he is a member of its litigation practice group and serves on the firm's executive committee. Tom's practice concentrates on litigation and Indian issues, with an emphasis on gaming, finance, Tribal Constitutions and Governmental Reform, and Economic Development. Tom has worked with Native American Tribes in the State of Oklahoma in efforts to recover unceded land based upon Treaty title and the Non Intercourse Act. Tom also advises other Indian Tribes regarding placing land in trust and the operation of different forms of economic development, including gaming, which involves interaction with the Department of Interior and Bureau of Indian Affairs in both Oklahoma and Washington, D.C. Tom is admitted to practice in the State of Missouri and before the U.S. District Court for the Eastern District of Missouri, the U.S. Court of Appeals for the Eighth Circuit, the United States Court of Federal Claims, and the Northern District Court of Oklahoma.

Expertise Commercial Litigation Indian Law Tobacco Litigation

Other Practice Areas Indian Gaming • Environment and Natural Resources • Finance • Lands • Legislative Advocacy and Analysis • Litigation • Tribal Constitutional and Government Reform • Tribal Sovereignty and Intergovernmental Relations

Professional Associations and Memberships American Bar Association Metropolitan St Louis Bar Association Missouri Bar Association

PRACTICE AREAS Litigation and Trial Practice Real Estate

BAR ADMISSIONS Missouri

EDUCATION Samford University Cumberland School of Law


Other Bar Admissions Oklahoma


American Bar Association Metropolitan St Louis Bar Association Missouri Bar Association e.Planners Educational Alliance

Spencer Fane Book  

This is a test of the capabilites of the program. Very cool and progressive! --Steve

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