Developing a Record Retention Policy

Record retention policy is necessary to ensure that records are (1) systematically retained for appropriate periods of time, (2) stored methodically and economically, and (3) systemically destroyed if no longer useful. Once relevant documents are appropriately identified, labeled, and stored, you should establish a records retention schedule and a timeline for the eventual destruction of the documents. At a minimum, you should retain documents for the time prescribed by federal, state, and local laws and regulations.

To ensure your ability to properly defend against a lawsuit, it’s highly recommended that you not destroy any documents before the expiration of the applicable statute of limitations period for any potential claim relating to the documents. In fact, in the event of an existing or even foreseeable formal investigation, lawsuit, or administrative processing or some other form of legal process, you’re legally obligated to maintain and not destroy all potentially relevant documents relating to the subject action — even if that means retaining documents well in excess of the minimum periods dictated by law or company record retention policies.

Once they’re aware of any existing or foreseeable legal proceedings, your company’s lawyers are legally obligated to advise you to maintain all potentially relevant documents and immediately suspend the destruction of those documents. Destruction, loss, or significant alteration of evidence can subject you to civil and criminal penalties and even the striking of your defenses to the legal proceedings. Before destroying any documents, you should review them to confirm whether they have reached the required retention period and determine whether they’re subject to any foreseeable legal proceedings. If you have any questions about whether a record relating to a legal proceeding may be destroyed, you should contact your attorneys before destroying it.