Wall Street crisis forcing closer look at e-records

The financial crisis on Wall Street has prompted numerous investigations into the lending practices of financial services firms, and they all have a similar focus: Who knew what, and when did they know it?

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With a robust electronic records retention system in place, companies could quickly answer such questions. However, industry observers note, few of the records-retention regulations enacted over the past decade have been strongly enforced, and most companies have done little to comply with them.

Analysts warn that the fallout from the Wall Street meltdown will quickly lead to stricter enforcement of existing laws - including the Sarbanes-Oxley Act, the Electronic Signatures in Global and National Commerce Act, the US Securities and Exchange Commission 's Rule 17A-4, and the Gramm-Leach-Bliley Act - and perhaps some new ones targeting the financial services industry.

At the same time, the US health care industry faces more scrutiny as it hastens to move to a national e-health system .

Today, only 10 to 15 percent of US corporations have electronic records retention systems in place, according to Gartner. "In terms of a good electronic records systems, I would say it's closer to zero," said Debra Logan, an analyst at the consulting firm.

"There will be an increase in regulations," predicted Hugo Torres, IT director at Great Florida Bank. "We've gotten wind of it. We'll be more heavily regulated than before."

Until two years ago, Torres said, it was common for four bank examiners to audit Great Florida Bank annually. Last year, as the crisis grew, 12 examiners inspected its records. Torres said he's bracing for even more auditors in 2009, as state and federal agencies scour every commercial and consumer loan to make sure that the banks performed adequate due diligence to determine the borrowers' ability to pay.

Logan said that stronger retention systems will also help companies to better defend themselves against legal action by disgruntled customers or employees.

"The amount of litigation that's going to be generated out of this Wall Street meltdown is going to be unbelievable. The regulators will be asking the banks what happened," Logan said. Lawsuits stemming from problems at government-backed mortgage finance companies Freddie Mac and Fannie Mae "will result in systemic change," she added.

Bill Savarino, a partner at Washington-based law firm Cohen, Mohr LLP and an expert in e-mail retention and other regulatory issues, said he expects that Congress will overreact to the Wall Street crisis and enact new legislation.

"I don't know if it's necessary," he said. "If they enforce the stuff they've got, we should be fine."

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