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(1) To keep records that the law requires, or are useful to guide future business operations; and (2) To eliminate all outdated and useless information.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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