Ralph Losey, partner at Jackson Lewis.
He serves as the firm’s national e-discovery counsel in charge of electronic discovery and related information management issues. He spoke to deputy editor Aarti Maharaj on the topic of document retention.
1. Documents tend to multiply. What are some of the primary problems associated with this risk?
The issue with information management is that there’s too much information. For instance, if you are involved in brokerage, the industry requires you to keep all communications and the law requires most companies to preserve most financial records. The major concerns with high volumes of information are with emails and other informal communications; over the course of just one year, many executives today accumulate up to 100,000 emails or more.
2. Why should corporate secretaries make document retention one of their top priorities?
If you are not required by law to keep information and have neglected to do so, and your company is sued or served with a subpoena for documents, you are required to produce all of the information that you do have. It is important to have a document retention policy in place, and enforced, so you don’t over-accumulate documents that are not needed.
3. What happens if the information was destroyed before you were served with a subpoena?
You should be protected, but only if the destruction was carried out in compliance with your document retention polices and was done in good faith – in other words, the documents were destroyed as a routine part of your business and not to conceal evidence. If the documents were destroyed for ulterior motives and were not destroyed in accordance with your policies, you could be sanctioned even though the destruction took place before a suit was filed. Once you anticipate litigation, you are under a legal duty to preserve all information that might reasonably become evidence in the litigation. Your failure to preserve evidence can result in serious penalties against the company and the individuals who destroyed it.
4. Does the corporate secretary have a role to play in creating an effective document retention policy?
Corporate secretaries should make sure that all records for which they are responsible are preserved as necessary to meet legal requirements, including litigation hold. This is a function of a legal hold that is managed by the company’s legal counsel with the assistance of the IT department.
5. What are the nuts and bolts of creating a retention policy?
First, determine legal retention requirements for different types of document. Decide how record retention applies to electronically stored information, primarily email. Firms need to ask themselves how long they want to save emails for and how long the law requires they save them. Second, give higher priority to key executives’ documents. CEOs and general counsel will need to save their emails and other information for many years because their projects can take that long to reach completion. Third is the three-second rule: it shouldn’t take longer than three seconds for an employee to file an email or document. If it takes more than that, it’ll often never be filed. Lastly, train your employees well. Staff in the legal department should be aware of the company’s retention policy and know what is expected of them.
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