Corporaterecords retention policies for many companies are afterthoughts with little understanding of how the companytrulyuses its documents/records/ESI. In my experience, many companies leave the decision ofwhetherto keep records and for how long to their employees. This strategy isdangerousand costly when litigation is potentially possible.Allowingyour employees total control over records and ESI drives the cost of eDiscovery up because you greatly multiple the number of possiblestorageares you must check for responsive records. It also increases the risk of spoliation when a litigation hold is required.
So to lower your cost and risk during eDiscovery, creating and enforcing effective records retention policies is a great first step to take.
Building effective records retention policies for eDiscoverypreparedness, storage management, regulatory requirements etc. is not an exercise that should be done by a single individual or department. Put a cross departmental team together to fully understand how yourorganizationuses and discards records.
The Eight Tenets:
- Understand any and all regulatory retention requirements you may have. Every organization will have federal or state retention requirements. The most obvious is the HR related regulations.
- Understand how and why your employees use data. You don’t want to create policies that make employees less productive or take away their ability to use and reference the data the need for their jobs.
- Create acommonsense retention schedule. Don’t create an overly complex schedule that employees will quickly find ways to work around or ignore. Keep in mind the 5 second rule: If it take employees more than 5 seconds todecidehow long to keep a record/document, they will almost always choose the longest retention period available.
- Build in a ESI litigation hold process…and test it.
- Train your employees on the new policies and insure they understand why thepolicieswere created.
- Enforce the retention policies with audits and punishments if not followed. This step is important in litigation to be able to show the Judge of your “good faith intent” to insure ESI is not recklessly destroyed.
- Insure the language of the poplicy stands up to scutinity in the event of litigation by having your external counsel review the policies annually.
- And lastly,documenteverything you have done.
Depending on the size and complexity of your infrastructure, an ESI archive may be appropriate.