Real Record Retention Programs Address Both Paper and Electronic

At a recent legal conference I listened to a panel discussion led by a large, international law firm on global record retention programs. Each panelist - legal staff from large to medium-sized corporations - discussed the success of their program. Someone from the audience asked the panelists how their programs handled e-mails. All the panelists replied that their record retention programs did not address e-mails. My reaction: What?!

Record retention and deletion programs that do not address e-mail and other electronic documents are not, in my opinion, real record retention programs. Organizations that have paper-centric programs that address electronic documents minimally or not at all are setting themselves up for failure.

According to a study from UC Berkeley, on average more than 96 percent of all documents an organization receives or create are in an electronic medium. This percentage varies somewhat from company to company, but we have yet to see a company where electronic documents do not comprise the majority of documents. Furthermore, as much as 80 percent of paper documents are copies of electronic documents. Paper is not going away, but this medium comprises the distinct minority of records. Nearly all of the new documents being generated are electronic.

Perhaps the biggest impact is on discovery. Electronically stored information (ESI) comprises the bulk of discovery costs. According to a survey conducted by the Federal Judicial Center, in 2009 civil litigation discovery costs for ESI on average were 11 times greater than those for paper documents. A good records program enables ongoing, defensible deletion of documents, lowering the costs of future discovery. E-Discovery has become discovery, and failure to address electronic documents just doesn't make sense.

Some record retention programs skirt the issue of electronic records. Some declare that their e-mails contain no records. In assessing records for numerous companies we have found most organizations have some records that are exclusively in e-mail. While you may believe that your e-mails contain no records, regulators are likely to have a different opinion. Occasionally we see record retention schedules that list e-mail as a type of record with, for example, a one-year retention period. This is a mistake, as e-mails are not a record type, but rather a medium containing both records and non-record documents. A few companies require their employees to print electronic records, and then save the hardcopy. Hardcopy paper records are generally one hundred times more expensive to store than their electronic counterparts, and are also one hundred times more expensive to discover.

Paper should not be ignored. In some industries there are a very small percentage of records that need to be preserved in paper. Also, for multi-national companies, some countries outside the U.S. require some records to be retained in paper. Additionally, paper copies of records, or "convenience copies" are fine, as long as they are not the copy of record and are disposed of properly. The biggest issue with paper is addressing not the new records, but warehouses full of older records (this will be addressed in a future column).

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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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