I made a bad call recently, and it is about time that I own up to it. Back in March, I spoke on an InsideCounsel web seminar along, “

One of the changes to the guidelines considered for this year pertained to specific requirements for document retention as part of already-required compliance programs. During the web seminar we discussed the increased importance of document retention in light of these changes, and practical ways to become compliant. I announced that these FSG document retention requirements were going to happen and organizations should get ready now.

I was wrong. Based on comments from the Association of Corporate Counsel and other organizations that these changes would be too to onerous implement for many organizations shortly after the webinar, the Federal Sentencing Commission dropped the document retention components of the proposed amendments. While the final updates will not officially go into effect until November, it is unlikely that this year’s changes will include document retention.

One can almost hear a collectively sigh of relief that these rules will not include the document retention program requirements. Good to be wrong. Now we can rest.

Except of course we do need to manage and control documents for litigation. With the advent to the 2006 Amendments to the Federal Rules of Civil Procedure, and now through case law the courts have clarified the need to have document retention policies, as well as defensible, documented processes for preserving electronically stored information. In addition, the removal of specific document retention requirements from the FSGs does not remove the history that courts are interested in reducing fines for organizations that have well-documented and managed compliance programs that include document retention.

Other than that, lack of a viable document retention and training program should not be a problem. Except of course if your company is in an industry that may be subject to regulations or regulatory inquiry. (And this is literally every industry.) During the past three years we have seen government entities from the SEC to the Department of Justice to even the FDA become extremely aggressive in the scope and tactics of seeking documents as part of an inquiry.

So baring that, this is a good year to rest. Then again, if you have some documents that might contain privacy information you probably should not rest. Organizations without effective document retention programs often are at high risk of data privacy breaches. The past few years have provided many stories of organizations that did not control their documents and data with privacy information and suffered the consequences. 

Did I ask if your company or employees use social media? This year there has been a significant uptick in both the discovery as well as liability of social media. Increasingly document retention programs and training incorporate e-mail and social media use policies. Lack of such a program can create real risk.

I made a bad call on the specific changes to the FSG for this year. But let’s not lose sight of the bigger picture. While this Sentencing Commission pulled back those changes for this year, smart organizations are still getting control of their documents this year for discovery, compliance, privacy and a number of other drivers. Don’t fool yourself that now the FSG changes have been dropped you do not now need to do anything.

Mark Diamond, founder and CEO of Contoural Inc., is a regular contributor to InsideCounsel on litigation readiness and records information management. You can e-mail Mark at markdiamond@contoural.com.