All companies create records in the regular course of business. These records may be created to meet business needs, comply with existing legal requirements or to protect the organization in case of litigation. Some are physical, most are electronic.
A fundamental best practice for minimizing business risk is to implement a legally defensible records management program. The first requirement of such a program is to determine the legal requirements for records retention and destruction. These requirements are the foundation for producing a defensible records retention schedule.
Next steps include creating,
- policies and procedures that conform to the retention schedule,
- consistent, well-documented Policy execution and enforcement,
- integration with enterprise Content Management Systems.
There are no guarantees in a court of law, but following these steps can significantly help to establish “Good Faith” if an organization can’t produce records in litigation. This way, a company can substantially reduce both legal risk and the cost of electronic discovery.
Years ago, most attorneys thought it prudent to keep records for long periods, or even “forever”, in case they were needed for some reason. Since the rise of multiple risks and costs associated with retaining records for too long, most attorneys now agree that records should be destroyed when no longer needed for any legal or business reason. “Keeping everything forever” did not require knowledge of the complex legal retention requirements affecting records, but the new data risk environment requires precise knowledge of what records must be kept, for how long, and how they may be destroyed.
There are thousands of U.S. laws governing how and how long companies must retain records, and they are steadily increasing in number. Responsibility for managing the risk around retaining and disposing of electronic information reaches ever deeper into management responsibilities. By improperly managing records retention, multiple organizations have been accused of obstruction of justice or destruction of evidence (spoliation), resulting in sanctions including adverse decisions or losses of rights in court. Not knowing the accurate and reasonably comprehensive records retention requirements for your company and your industry is no longer optional in corporate governance or fiduciary accountability.
The following options may provide possible solutions for creating your retention schedule.