The Why and How of Document Retention Programs

Robert M. Miller, JD

By definition, managing electronic discovery means managing the development and execution of customized strategies for collecting, processing and reviewing materials for litigation. However, before a corporation can effectively begin to manage its electronic evidence, it must first create a sound, defensible, and efficient e-discovery process. Arguably, the foundation of any such process is a standardized, detailed and consistently-enforced document retention policy. Even if a document retention policy is already in place, it will most likely need to be updated in order to address the latest developments in electronic information uses, as well as recent changes to the new Federal Rules that govern such materials.

Historically, many corporations have failed to see the importance of a well-defined and rigorously updated document retention policy. However, the constant threat of discovery disputes, the possibility of significant sanctions, and the subtleties of the new Federal Rules have made document retention policies more relevant than ever.

In this two-part article, we will address why organizations need a formalized document retention program, as well as the considerations involved in creating a usable, maintainable document retention policy in the digital age.

The Need For A Formal Document Retention Policy

A document-retention policy is an important tool a company uses to address the systematic creation, retention and disposition of corporate records. Records—defined by the International Organization for Standardization as “information created, received and maintained as evidence by an organization or person in the transaction of business, or in the pursuance of legal obligations” — can exist in any media format, including the entire range of paper and electronic file types.

Paper records can obviously be stored in filing cabinets, drawers, boxes and the like, and are relatively simple to acquire, organize and maintain. In the case of electronic records, however, the considerations become significantly more complex. E-files can be stored using an array of portable media such as microfilm, flash drives, CDs and DVDs; or on devices such as Blackberries, Palm Pilots, laptops or even iPODS. Additionally, files can be housed on systems such as workstations, servers, corporate e-mail systems, shared network drives, or even the company’s voicemail system. However, not all items are considered business records - for example, personal e-mail and routine notices would not fall into this category.