E-Document Management: A Litigator Looks at Retention Policies

Computerworld - For IT professionals, top management and their lawyers, the explosion in awareness and use of electronic documents in litigation presents great challenges.

For example, the widespread use of business e-mail has often required the revamping of document retention policies and the dedication of substantial resources to ensure that the enormous volume of electronic communication is properly treated from the perspective of regulatory and litigation preparedness.

The problem may soon get worse with a similar explosion in the use of new communications methods such as digitized voice mail, a medium that has the potential to become as permanent and accessible as e-mail.

Electronic records are generally subject to discovery in litigation to the same extent as paper records. Yet such records, because of their volume and ease of creation, retention and destruction, can present unique challenges to a business. This article attempts to outline some of the important concepts that a business should consider in constructing a policy to deal with the retention of such e-documents.

First Principles

First, having no policy is a policy. A business that has no centralized policy regarding retention of electronic records in effect delegates decisions about which records to create, retain or destroy to all the employees who have access to record-making or record-keeping functions. Employees with limited perspectives on management and legal issues shouldn't be relied upon to make decisions that could affect the entire business.

Second, "bad" documents are being created, even as you read this sentence. It isn't possible to retain only good documents. Indeed, it's not necessarily possible to determine in advance whether a particular document will help or hurt a business in the event of litigation. A directive to retain only good documents, moreover, could be subject to severe scrutiny in the event of litigation. Thus, any e-document retention policy must be based on neutral principles that can be readily explained and defended in court.

Finally, policies are only words. To be effective, a policy must be implemented. It must also take into account practical business constraints that may affect the ability to implement it. Furthermore, in most instances, some form of training, supervision and troubleshooting must be built into the implementation. Where significant problems arise in implementing a policy, moreover, a business must be prepared to modify its policy to ensure that it works in practice. A poorly implemented policy may cause as much trouble as having no policy at all.

Purposes of the Policy

Before constructing a policy, it's vital to consider its specific purposes. Although it's possible