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What is Your Document Retention Policy?

Recent changes to the Federal Rules of Civil Procedure dramatically alter the landscape in any type of litigation. Under the new E-Discovery rules, the parties must meet and confer about how electronic data will be exchanged. Different formats provide different types of information. For example, meta data available in the file’s native format contains a host of information such as when a document or email was created, modified, last accessed or the author. A scanned .tiff version if the same document or email provides none of that information.

Of equal importance is the scope of what will be produced. A decade ago courts were reluctant to require the parties produce a half-million documents. In today’s digital society courts will readily require parties to produce gigabytes of data that contain hundreds of millions of pages of documents. If a party knowingly destroys digital information, the court could instruct the jury to infer negative evidence existed. In some cases, parties have been subjected to significant sanctions even if the documents were destroyed before the other party asked for them. During litigation the adverse party could ask for backup tapes or other electronically stored information and the burden will be on the responding party to prove that producing the information would be an undue burden.

Smart companies implement and follow adequate policies for retaining and destroying electronic data. If a company retains every file and every email that was ever created, received or sent, they may be required to turn those documents over in litigation. Without even considering whether the files would help or hurt the case, a company can expect to spend tens or hundreds of thousands of dollars paying someone to sift through the computer files to determine which documents are responsive. If files are destroyed too often then valuable information will not be available.

Each company can decide what document retention policy works for them. The key is to have a defined policy and then follow that policy. Failing to define and/or follow an adequate document retention policy is a costly mistake. If you receive a letter telling you not to destroy documents, immediately talk to legal counsel to determine whether you need to suspend or modify your document retention policy.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

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Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.