Document Retention and Destruction: Understanding the Document Lifecycle

3/23/2017 - By Zachary Farrington

Documents have a distinct lifecycle. They move from being online (production) to near line (easily recoverable) to offline (archived). Knowing what to keep and for how long can be tricky business for law firms.

While it’s important to be able to produce critical documents when they’re needed, maintaining a file longer than necessary can cause trouble. Suppose a client follows standard document retention procedures and disposes of a set of documents. If the law firm retains related documents beyond that retention schedule, those documents then become discoverable in a legal matter.

The key is to develop document retention and destruction procedures that protect your interests as well as those of your clients.

Take Inventory and Classify

Different records in different forms require different periods of retention, so start by analyzing the records you hold and determining where and how they are stored. Many of them will no doubt be in electronic form. The growth of electronic discovery has added substantially to the volume of sensitive data law firms must manage. Electronic documents could be in places as far flung as client e-mails and voicemail messages, videos and tapes on your personal transcription/tape recorder.

Create a spreadsheet to help track what kind of records you have. Increasingly, law firms are utilizing secure document management systems such as Worldox or NetDocuments to automate the record retention process.

Define the Rules

The rules governing document retention vary widely, and your firm may fall under several different jurisdictions. Here, it’s best to err on the side of diligence:

Follow federal/state laws or regulations. If federal and state requirements conflict, follow the more stringent requirements.
Follow your state Bar’s rules. If you are a member of the Bar in multiple states, meld the strictest rules from each state into your procedures.
Follow your own internal policies. If you’ve developed specific, firm-wide document retention procedures, make sure they are followed. Selective use of procedures is a sure ticket to a spoliation of evidence charge.

Create a Workable Policy

The best approach for bringing order to the sprawl of documents in your firm is to create a formal document retention policy. It should be tailored to your unique needs, but will certainly involve these core steps:

Define how long to store both paper and electronic records, making sure you specify retention periods for specific categories of records. Also, outline how and where to store documents.

Specify how records are to be destroyed when their retention period has expired.

Select individuals responsible for destruction and monitoring, as well as updating the policy.

Detail the circumstances under which the policy should be suspended — such as when a lawsuit is anticipated or in progress, a subpoena has been served or an investigation is known to be underway.

Enforce the policy in a consistent fashion.

Review the policy annually to determine if any change is necessary.

Refresh your staff’s knowledge and understanding of the policy. Schedule lunch-and-learns with a managing partner, for example, to keep document best practices top-of-mind with attorneys and staff.

Destroy Documents Prudently

You can’t “un-do” document destruction, so take steps to prudently manage this process. Designate specific individuals who are authorized to make decisions on what documents to destroy. Because this requires a certain amount of judgment, these decisions should not be delegated to non-attorney staff.

Next, screen all records scheduled for disposition. Provide attorneys an opportunity to review files before they are disposed of. Likewise, establish procedures for contacting clients regarding their files before any method of destruction is employed.

Be sure to follow the same ethical rules for files scheduled for destruction as you do for active files. There will always be members of the firm who should not have access to certain client data because it would create a conflict.

Just as important as what to destroy is what not to destroy. This includes original testamentary documents or vital records such as death, birth and marriage certificates. Files with outstanding judgments or cases involving minor children who have yet to reach the age of majority would likewise not qualify for destruction.

Finally, establish approved methods of destruction as well as procedures for documenting that files were destroyed. Maintain an index of all disposed records so you can prove that the records were disposed of according to your retention schedule.

Preaching to the Choir

After years of preaching the virtues of document retention policies to their clients, many law firms have begun to realize the importance of having a clearly defined document management and retention strategy of their own.

By following these guidelines, your firm will be in a better position to ensure compliance, limit risk and streamline storage requirements for your records.

Our knowledgeable professionals can provide expert guidance on drafting a solid document retention policy. Contact a member of our Litigation Support team if you have any questions.