Last week we discussed some of the new issues that arise regarding electronic records. I summarized the results of a pre-federal rule amendment case, Zubalake v. UBS Warburg.
If you've decided to do your best to protect yourself from similar circumstances, consider developing and implementing a written record retention policy. Following are some things to keep in mind:
- Identify the types and sources of both electronic and hard copy documents;
- Evaluate the business need for the various types of electronic records and documents. Keep in mind that some records have mandatory retention periods.
- Determine the retention or destruction period for classes of records.
- Anticipate the arguments that may be made and inferences that could be drawn from the destruction of certain documents and weigh it against the expense of retaining and producing the documents.
- Establish a storage and retrieval system for retained records evaluating its cost and efficiency.
- Develop, communicate, and enforce a policy on record retention.
- Establish a system for placing a "litigation hold" on records when a claim is threatened, administrative claim commenced, or a law suit filed. This will protect your company against sanctions for destroyed documents.