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Document Retention Road Kill

Is Your Company Road Kill Waiting to Happen?
In my last post I explained many of the dangers Cyberlaws pose to your company. Given the complexity of these laws, many companies choose a deer in the headlights approach. Fortunately, most of the time the strategy works. Unfortunately, when it doesn’t, it ends up turning your company into so many tiny puzzle parts of corporate road kill.Shredder_4

That First Step
The hardest step for any company to take is that first one. Fears of being overwhelmed, of throwing money down the drain, or of starting in the wrong place all paralyze companies into inaction. So, where to start? Every company is different. Companies with a primarily online presence may be see the biggest return on investment investing in intellectual property protection. Other companies may be better advised to invest in areas which have proven to be problems for competitors.

Document Retention/Destruction
If you are unsure of where to begin, one of the areas where nearly every established company can benefit is in the area of document retention, or more precisely, document destruction. Now before you start getting all CIETC on your old documents, take a minute to determine how long your company needs to keep different types of documents. Your company may decide to destroy some documents, like text messages, after 30 days. Others, like information relating to corporate formation, you may need to keep forever.

Conservatives and Consistent
If you are not sure where to keep a certain type of document three years or five years, start with five. You can always adjust the term to be shorter at a later time. Avoid giving employees the incentive to archive documents outside of the system. Corporate packrats will not only add thousands of dollars and man hours to the cost of litigation, but the ongoing violation of the company’s document retention policy may, in light of the new, more stringent, Federal Rules of Civil Procedure, lead a judge to fine and/or rule against your company in court.

Conscripting a document retention committee to draft a conservative document retention policy at least provides your company the opportunity to get rid of those Commodore 64 floppy disks your board has been using as retro coasters. Trust me, the cost of tracking down hardware to read this obsolete media far outweighs any potential benefit your high score on Moon Patrol might otherwise provide. Even for more recent data, the potential the data will hurt your company is typically greater than the potential it will help.

Most importantly, be consistent. Start off with only those policies you can police effectively. Having a policy which employees consistently violate is worse than having no policy at all. As employees adopt a rigorous approach to policy adherence, increase the scope of the policy until it becomes comprehensive. Once you have a comprehensive policy, revisit it periodically to accommodate changes to the law, your company and your methods of storing and retrieving documents. 

The Downside of Delay
Savvy lawyers are leveraging new rules on the production of electronic documents. Rather than have to find hardware to read, search and sort through millions of out-dated electronic files, companies without do cement retention policies often resort to paying settlements far in excess of what they might have paid before the implementation of the new rules. Worse,  your company’s lack of a "legal hold" provision in its document retention policy may lead to enormous fines and/or prison sentences for destroying documents AFTER your company is sued. 

Form a document retention committee today. Have them put together a formal document retention policy. Start small. You can probably get rid of most corrupted storage media as well as media for which you no longer have the hardware to read. As noted above, there are few types of old electronic documents your company needs to keep forever. For the other 99%, it is better to get rid of it now. The other option would be to keep it until you get to take the witness stand staring at 2×3 foot cork board blow-ups of the documents while a somewhat less than cordial lawyer implements a much more well-conceived witness destruction plan.

Brett Trout

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