5 Ways to Create and Run a Successful Document Retention Program

There are business and legal reasons for having a document retention policy, writes law firm Sheehan Phinney Bass + Green PA:

“[Information retention/destruction] plans help companies remain organized and efficient as irrelevant or stale information is discarded making it easier to find relevant and pertinent information. Reducing the volume of information reduces storage costs both in terms of physical space and computer hardware… Thanks to recent changes to the rules of civil procedure, companies who discard information pursuant to a written plan before they reasonably anticipated litigation cannot be sanctioned for having done so.” (Record Retention in an Increasingly Paperless World)

But implementing a policy, and making it work, are two different things entirely. For your reference, here are five recommendations for ensuring the success of your company’s document retention policy:

1. Make sure your employees are following the policy:

“Document retention policies are risk management tools. Once a policy is in place, a firm should make every effort to comply with the policy. In some instances, litigants have increased liability by failure to destroy documents as called for by the Records Management Policy.” (Records and Information Management and Retention by Venable LLP)

2. Stay on schedule:

“A key component of any document management policy is its record retention schedule. Even if legally defensible, the way a schedule is structured affects how often, if at all, it is used, and whether it is used properly. Record management creates the schedule, and the user puts it into practice. A successful schedule is one that meets the needs of the company, legally and operationally, and makes sense to the user.” (Your Schedule Should be like a Duck by Warner Norcross & Judd)

3. Don’t be a hoarder:

“Deciding how long to hold on to specific records in your facility can be a challenging task, especially when so many different types of records cross your desk every day. If you’re a pack rat like us, it’s tempting to hold on to everything indefinitely – an option we know can be space and cost prohibitive, especially within the nursing home environment. Our reluctance to dispose of records is also driven by several critical questions, such as: What if I need this record to defend our facility in a lawsuit? What if a state or government agency audits or investigates our facility for issues contained within this record?” (Toss or Keep: Document Retention in a Nursing Facility by Poyner Spruill LLP)

4. Don’t throw out things you might need (or be required to keep):

“Federal, state, and local statutes and regulations should only be the starting point. As an example, a business would be remiss if it were to allow the destruction of a document before the expiration of the applicable statute of limitations for any cause of action which may be related to that document… [W]e can appreciate the importance of retaining a lease through the period of the leasehold whether it is a 20-year lease or a 99-year lease.” (Records Retention Policies for Human Resources Departments by Eric Banks)

5. Litigation changes everything:

“Immediately upon receipt of a subpoena, you should inform all necessary employees of the need to retain documents, including electronic documents, with a document hold memo that replaces standard document retention policies for potentially responsive materials. Destroying or removing documents in the context of a government investigation—whether done affirmatively or by failing to suspend automated document retention protocols—may be viewed as obstruction of justice. At the very least, it will create the appearance of an unwillingness to cooperate with the investigation.” (How to Respond to a Subpoena: 10 Things You Should Do Immediately by BuckleySandler LLP)

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