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Document Retention Policy Consulting

We never planned on creating a document retention policy practice.  After all, we are primarily a litigation shop.  However, our clients recognized our sophistication at challenging opposing parties’ electronic document productions as well as document retention policies, and essentially told us – “Since you know how to attack a document retention policy better than any other law firm we know, why don’t you create one for us that will stand up in court?”

So we did. 

Our approach to creating a document retention policy is simple: we ask ourselves how we would attack it if we were on the other side in litigation, and then make sure it will not be vulnerable to those attacks.

Why do you need a document retention policy?

Good question!  For starters, the Federal Rules of Civil Procedure provide a “safe harbor” from discovery sanctions for litigants who mistakenly delete evidence pursuant to the good faith operation of a document retention policy.  If you have no document retention policy, or if you do not follow it, you do not gain the benefit of this protection.  In addition, your business may be governed by several regulations that require you to retain certain documents for specified periods of time.  A good document retention policy will help your business adhere to such requirements.  And of course, a good document retention policy simply makes good business sense because it creates a sophisticated architecture to maintain your company documents. 

Each document retention policy we create balances the importance for preserving evidence for potential litigation with reasonableness (just because you can preserve all of your voicemails for seven years does not mean it would be reasonable for your business to do so!)

Each document retention policy requires different elements depending on the business involved.  That being said, our typical document retention policy engagement involves the following steps.  Each step of the process is thoroughly documented so that it may later stand up in court if need be.

  1. First things first: document destruction should be frozen until we gain a firm understanding of the types of documents your business maintains.

  2. Next, we issue a company wide information “amnesty” program whereby we ask all employees to report and return all company documents, both paper and electronic, they may have within their possession outside of the office.  Such documents may be stored on a disk in their closet, on their home computer, on a thumb drive they keep in their pocket, or they may have emailed company documents to their own personal email account so that they could review documents at home. 

  3. We then interview your computer information systems officers to obtain a firm understanding of your computer architecture.  (While we speak the language of attorneys, we are computer people too, so we’re perfectly fine to talk geek to geek with your IT staff.)

  4. Next, we interview key people from each department to learn how they currently maintain documents, which types of documents they create and maintain, and which regulatory agencies and regulations they know they must routinely adhere to.

  5. We then do the legal research to determine which governmental regulations the document retention policy for your specific business must follow.

  6. We also research case law for companies similar to yours who have had their document retention policies challenged in court.  If you are going to have a document retention policy at all, it is imperative that it will pass muster before a court.

  7. Then we draft the policy.  We like to create two versions – one that is detailed and thoroughly governs the treatment of each type of document for your business, and one that generalizes the document retention policy that can be used as a quick reference guide for every employee of your business.

  8. We then submit the draft document retention policy to key people within each department of your organization to obtain their feedback.  This point is when the real details of the policy are ironed out.  Once people realize how the document retention policy will affect their daily business activities, we discover key efficiencies unique to your business.

  9. At this point, we confer with you to select an individual within your organization to serve as the administrator of the document retention policy.  Typically, this person will either be in your legal department or your computer information systems department.  Bottom line: you need a single person to be responsible for ensuring the document retention policy is followed on a daily basis.

  10. We then finalize the document retention policy, working closely with your newly selected document retention policy administrator.

  11. We also create audit procedures to supplement the document retention policy so that you will know which steps to take to ensure that your document retention policy is followed and will continue to hold up in court.

  12. Once you are happy with the written document retention policy, we work with you to implement it.  Implementation may involve holding training seminars to educate employees how to follow the document retention policy.  It may also involve installing new document retention software to supplement your computer filing architecture.  Each case, of course, is different.

  13. We then conduct a mini fire drill to simulate a real litigation environment.  We create a fictitious legal scenario, along with fictitious document requests.  We then go through the process of collecting data and preparing that data for production in the fictitious lawsuit.  We then analyze any issues encountered in this exercise, and adjust the document retention policy accordingly.

  14. As courts continue to change their interpretation of what a reasonable document retention policy should look like, we revisit your policy first after six months, and then every year to ensure that it is both up to date with any new requirements.  We also help you to determine whether or not your policy is actually being followed.