7 Record Retention Policy Considerations

Corporations must constantly update their record retention policies to ensure compliance with retention guidelines prescribed by the federal environmental protection laws, IRS, Sarbanes-Oxley Act of 2002,  FLSA, FMLA, ERISA, HIPAA, Michigan Unemployment Insurance, Michigan Worker’s Compensation Insurance, Elliot Larsen Civil Rights Act and other controlling state law to name a few (not meant to be an exhaustive list). When implementing such policies, consideration must be provided to the following:

1. Adherence to Record Retention policy: it’s important to assign personal within the organization, who implements the policy properly working in conjunction with the legal and IT staff. If not executed properly, courts may propose sanctions using your own policy as a guidepost.

2. Training: Adherence to policy requires a well-trained staff, which includes all employees who handle potentially relevant data. Trickle-down knowledge can simplify the process by adequately training the person in charge, and allowing them to implement educational seminar for other employees.

3. Backup tapes or archived data strategy: Balance must be struck between data on server and the triggering time frame to archive data. Once archived courts are less likely to require production, however if data is determined to be absolutely relevant to the underlying issue, then you may be compelled to incur cost for production.

4. Court’s across the country have consistently cited some form of Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003) “Seven Factor Test.” as a cost-shifting analysis and now we may further rely upon the 2015 Amendments for guidance.

5. Cost reduction through organization: organizing documents per subject matter, contract, client, time frame, type of documents and any other measure as prescribed by each particular industry or business can reduce your overall cost of production. Special consideration must be given to all communication between attorney and client.

6. Meta Data Preservation: A business must continue with day-to-day functions regardless of litigation. Legal hold can create a conflicting dilemma within an organization to preserve data and especially the metadata. Metadata is “data within data” meaning the information about when a file is created, stored, modified etc. Upon notice of a legal hold, documents that are later modified by custodian within an organization can raise concern for the opposing counsel. Potentially important information may have been removed and deleted – this can result in sanctions or hiring of forensic experts to extract former version of the document.

7. Format: The importance of format must be discussed with your IT and legal department. Storing documents such as emails in PST format or retaining documents in native format can reduce overall size and cost of reviewing for your counsel.

This is not meant to be a comprehensive list of all potential considerations, rather this list only touches the surface. For further discussion or questions regarding record retention policies, feel free to contact me directly.

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