Four Elements of Defensible Deletion Strategy

While some companies do get in trouble for not saving documents for the required retention period, most face the opposite problem: Their de facto policy is to save nearly all documents forever. This ongoing accumulation drives up storage costs and increases the risks and costs of discovery in the event of litigation or investigations. Few companies implement ongoing, routine deletion of electronic information, but they should.

Before hitting the delete button organizations need to ensure that their deletion processes are defensible. Simply stated, a defensible process ensures that organizations do not delete documents they need to retain or preserve, and provides some level of protection against legal opponents who down the road may ask pointed questions on why specific documents have been deleted.

Defensible deletion can be broken into four elements.

Element 1: Up-to-date Document Retention and Deletion Policy

Many organizations have document retention policies. Fewer of these policies or the supporting documents discuss deletion. The courts have been clear that ongoing document deletion is a routine business process, but deletion needs to be supported by policy. In Keithley v. The Home Store (2008 WL 3833384 N.D. Cal. August 12, 2008), the court sanctioned the defendant for deleting documents, noting its "lack of a written document retention and litigation hold policy." Be sure your policy includes both the business justification and process for deleting documents.

Element 2: Defensible Legal Hold Policy and Process

Ongoing litigation and lack of a process for identifying which data is and is not under legal hold gums up the deletion process. Create a clear and consistent legal hold process that clearly delineates data being held, allowing the routine deletion of data not under hold. The more clear and consistent your legal hold process, often the more aggressive you can be in deleting older, non-relevant data.

Element 3: Record Archiving Strategy

Organizations are often reluctant to engage in deletion knowing that some of the data contain some records which need to be retained for a period of time. Identify and retain those records, separating them from the mass of other, non-record related data. Between 5 and 35 percent of e-mails are business records and some of the records exist exclusively in e-mail. In other words, between 95 and 65 percent of e-mails are not records. Put effort into separating the wheat (records) from the chaff (non-record documents), enabling you to throw away the chaff. A good archiving system can greatly aid this process. Again, the better you are at determining what needs really needs to be saved, the more aggressive you can be at deleting the rest.

Element 4: Provide Clear, Intuitive Guidance On What Employees Should Save and Delete

Our surveys indicate that without clear direction, more than 90 percent of employees tend to save more documents than they need. Their reasoning is no one ever got in trouble for not deleting a document. On the other hand, given clear guidance we have found that 80 percent of employees will follow a reasonable, intuitive policy. What is reasonable and intuitive? Don't provide your employees with extremely long or vague document retention schedules. Use a department or level-specific file plan (a subset of the document retention schedule) to clearly communicate which documents need to be saved in which buckets. Also, limit retention periods to no more than five choices. Keep it simple and straightforward. Finally, ensure that your retention schedule takes business value into account in retention. If your policy does not recognize business value, your employees will likely engage in "underground" archiving, saving documents where they should not. On the other hand, keeping documents within control of the record retention strategy enables much easier deletion later when they are not needed.

This is part one of a two part column. Mark Diamond's next column will discuss how to prevent employees from hording documents.

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Mark Diamond

Mark Diamond, Founder & CEO of Contoural, Inc., is a regular contributor to Inside Counsel on Litigation Readiness and Records Information Management. You can e-mail...

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