"File Retention Policy – The Time has Come!"

by Wendy Zimmerman, Assistant Legal Administrator
Robison, Curphey & O'Connell

     If you say the words "document and record management" to three different people, you may get 3 very different definitions. The reason is these words hold different meanings to different people. In the aftermath of Enron, document destruction allegations have led businesses to examine the types of documents they have and how long they are retained.

     Getting started on a file retention policy is the most difficult part. Regardless of size of firm assuming a team approach will generate a more comprehensive policy. Additionally, the more people involved the easier the ‘buy in' to the completed policy.

     The three basic characteristics of a good File Retention Policy are: (1) A Retention Schedule (2) A Mechanism to Freeze Records (3) Education.

     Creating a retention schedule will be challenging. First your office has to define the types of "records" kept by the firm. Some of these types of records may be physical paper files, computer files, emails, faxes, audio, video, etc. Once you can answer what types of documentation your office generates, receives or uses, you'll be in a better position to decide what needs to be retained.

     The next step is research. Unfortunately there is no single set of rules that can automatically dictate how long a record should be kept. While there are federal, state, and local rules, much of the decision will be based on the type of practice or records within your office. Further once the policy is implemented research should again be done every few years thereafter. I know I don't need to say this, but laws change.

     A mechanism to freeze records is a small part of a file retention policy but is critical to the success of a policy. Simply stated the policy should include a way to interrupt the regular file retention schedule subject to pending litigation. The mechanism would immediately alert everyone in the entire office to halt all customary retention procedures until further notice. Case in point see Prudential Inc. Co. of America Sales, Litig., 169 F.R.D. 598 (D.N.J.1997)

     The third basic characteristic is education. The key to any successful policy is training and education. Every employee and member of the firm will need to be trained on the file retention policy. This education should also be extended to any person who joins the firm.

     With a team approach your office will reap the benefits of saving money, improving operational efficiency, while providing legal compliance and litigation protection. The time has come to get it done.