Insights

Words To Keep: To Shred Or Be Shredded – That Is The Question

Lance Broberg,  |  March 16, 2017

Whether, and how long, to retain documents is a question plaguing businesses and individuals alike.The question of whether to keep original documents and letters (either sent or received), drafts, working copies, notes, memos, letters, minutes of meetings, and now emails and all sorts of other digital/electronic documents (“records” or “documents”) is constantly in conflict with the desire to clean out files and storage areas.

Is there an answer to what to keep, how long to keep it, and when and how to throw “unneeded” stuff away? Unfortunately, the answer is:“It depends.”Your decision to retain or destroy records must involve an analysis of what each record contains and whether or not you are on notice that the record may become “discoverable” in connection with a problem at some later time.Your decision depends upon an analysis of at least the following factors:

  • Is anyone, presently aware of any actual or threatened lawsuits, audits, administrative inquiries, complaints from employees and the like (“problems”) that might involve the records?
  • Do the records serve as backup, or proof of some contract obligation, reimbursement, payment or performance involving someone else?
  • Do they track income or expenses, hiring or firing, or company policies and procedures?
  • Are there any other retention needs particular to your organization, industry, or business?

An analysis of the record itself is also important:

Is it paper, a form, a document received from someone else?

  • Is it an electronic document which was created within your organization, or received from the outside, but which is now resident on your computer system?

A formal written document preservation and destruction policy is highly recommended in today’s business and litigation environment.That policy should be tailored to your specific needs and contain at a minimum the following:

  • Identification of document categories with the specific length of retention coinciding with the longest statute of limitations involving claims likely to arise from those categories.
  • Each statement must include a procedure for implementing automatic destruction of the various categories at the end of their respective retention periods.
  • Each statement must include a specific procedure to stop the automatic destruction of records once you learn — or have reason to believe — that a problem exists, is threatened, or is likely.Once you have such knowledge, State and Federal law require that the policy MUST be stopped and all reasonable efforts (erring, if at all, on the side of retention) must be taken to protect and preserve ALL records that are — or might be — related to the problem.Failure to have and implement such a policy WILL result in unpleasant and expensive consequences.
  • Each statement must deal with paper documents, as well as all electronic documents, you generated or received.

Once a policy is in place, you must faithfully follow the procedures set forth in that policy statement in order to avoid difficulties in the future.

The best way for you to protect yourself is for you to consult the member of the firm you normally work with and discuss your specific needs and design a policy that makes sense for you and will keep you in compliance with the constantly changing and evermore complex business and legal environment we live and work in.

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