Records management at Apple

I've been meaning to post about this matter for a few days, but haven't had the chance . . . .

During the past few months, Apple and Psystar have been engaged in a running legal battle: Apple alleges that Psystar, which sells computers that come with Mac OSX installed, is guilty of copyright infringement, and Psystar alleges that Apple, which does not want other companies to sell computers that have Mac OSX operating system software factory installed, violates antitrust laws. Psystar's antitrust claims have just been dismissed, but it looks as if Apple's suit is going to make it to court in 2009.

From an electronic records angle, the most interesting aspect of this dispute is that it's led Apple to disclose some information about its electronic records management practices. The Industry Standard, which was apparently the first media outlet to make note of this fact, reproduces in its entirety a document outlining Apple's and Psystar's agreed-upon rules for responding to each others' requests for evidence; you can either view this document via the Justia.com scroll box that appears at the bottom of the page or download a copy in PDF format.

The good stuff is on pages 7-8 of the document, which contains Apple's statement about its routine records management practices and the actions it has taken as a result of the lawsuit:

At Apple, individual employees are tasked with maintenance of their own files including hard copy documents, emails, voicemails and other electronically recorded materials. Apple has not implemented any programs that result in the automatic deletion of emails. Similarly Apple does not determine which voicemails are saved or deleted by an individual recipient. However, the voicemail system is set up to delete saved messages after ninety days. At the institution of this lawsuit, Apple identified a group of employees who could potentially have documents relevant to the issues reasonably evident in this action. Apple then provided those individuals with a document retention notice which included a request for the retention of any relevant documents, including but not limited to emails, voicemails and other electronically-recorded materials relating to the issues in this lawsuit. As a result of the counterclaims asserted by Psystar, Apple has also sent out a follow-up retention notice asking for the retention of documents reasonably relevant to the antitrust and unfair competition claims asserted by Psystar. Apple will be working with Psystar to narrow the list of individuals from whom documents will be retrieved for purposes of this lawsuit.

As the Industry Standard asserts, it's a bit startling that a large (no. 103 on the 2008 Fortune 500 list), publicly traded technology company would have such a . . . decentralized approach to the management of its records. However, I don't think that Apple's approach is inherently "negligent," as an unnamed attorney specializing in e-discovery is quoted as saying. I also have to take issue with the Industry Standard's assertion that Apple has "no company-wide policy for archiving, saving, or deleting" records. Apple's policy is indeed company-wide -- it just makes individual employees responsible for managing the records they create or receive.

Is Apple's policy as good as it could be? No. Records managers concur that the best approach to the management of electronic records involves use of recordkeeping systems that have built-in records management applications. These applications manage records centrally, inform records managers when a given grouping of records has reached the end of its legal retention period and can thus be destroyed, and enable them to suspend the destruction of records that might be needed as a result of litigation.

However, it's plain that Apple is not the only large corporation struggling with electronic records management issues. Cohasett Associates' 2007 Electronic Records Management Survey: A Call for Collaboration reveals that although companies have begun addressing e-discovery concerns, incorporating electronic records into records schedules, and moving responsibility for day-to-day management of electronic records out of the hands of IT staff, they still have a lot of work to do:

• For most organizations, a great deal still remains to be done to achieve credibility in the management of their electronic records and, in time, a sustainable “best practice” level performance.
• Major gaps and risks related to the handling of archival and backup media were confirmed.
  
• Significant gaps in accountability for day-to-day management of all types of electronic records were reported.

So Apple isn't alone in having a less-than-perfect policy, and I can think of several reasons it hasn't adopted an more technologically oriented approach to records management. To date, it hasn't developed any recordkeeping/records management products of its own, and its vertically integrated business model, secretive corporate culture, and legitimate security concerns may militate against use of products developed by other tech firms.

Short of implementing a recordkeeping system that has a built-in records management application, how could Apple improve its records management policy? Well, one key element that Apple doesn't seem to have addressed (at least in this filing) is training, which is a prerequisite for the success of any records management policy. Sending out policy notices to staff is one thing. Explaining -- on more than one occasion -- the reasons for the policy, the importance of adhering to it, and how records management fits into the day-to-day operations of the organization is another, and organizations that fail to do so often find that their policies aren't producing the desired results.

Apple's statement also neglects to mention the extent to which its records management policy has executive support. Are the policy directives being distributed by counsel or mid-level managers with little fanfare, or are Steve Jobs and other senior managers repeatedly driving home the importance of adhering to these policies -- and ensuring that staff have the time needed to do so?

Finally, what of Psystar? Judging from the filing outlining Apple's and Psystar's agreement regarding responses to discovery request, it doesn't have any sort of records management policy in place. Here is the full text of Psystar's statement concerning its records:

Counsel for Psystar has personally counseled the principals of Psystar as to the retention of documents and other information as they pertain to the issues in this lawsuit. A retention notice was subsequently issued to the principals of Psystar memorializing the same. Retention of documents includes but is not limited to electronic mail, physical documents and things, and other electronically-recorded materials.

I get the distinct impression that even though Apple is falling short of the mark, it has devoted much more attention to records management issues than Psystar has. However, given that Psystar seems to have appeared out of thin air (even its physical location is a bit of a mystery), perhaps that's not surprising.

Update, 29 November 2008: In the interest of full disclosure, I've been an Apple user since the mid-1980s, when my parents purchased an Apple II-series machine, and my trusty (so far) mid-2007 MacBook is my constant companion. However, I don't believe that the company is infallible or that its products are flawless: I know two people who have had serious problems with the hard drives of brand-new late 2006 and late 2007 MacBooks, and I have my own Apple horror story involving a PowerBook 150.