The Department of Justice will not (and really cannot) tell an organization what their retention policy should be. Nor will a judge question the directives of the policy if you can show that the policy was developed in good faith with reasonable inputs from internal and external council, respect and understanding of regulatory agencies from all jurisdictions in which the organization operates, and regard for the rules of civil procedure and evidence. This of course does not mean shredding parties would be considered an appropriate form of disposition. Or disregard for orders to preserve.
Recent changes to Rule 37 of the Federal Rules of Civil Procedure I believe reflect the reasonable nature of how the courts should determine spoliation and assign penalty. After all there is such a thing as Disaster Recovery which implies disasters can and do happen. And let’s face it people make mistakes.
The conclusion of changes to Rule 37e presented at MER Conference by Steven Teppler are:
“…restricts the courts power to impose spoliation sanctions if the party’s ESI preservation efforts were reasonable and proportionate, the loss of ESI can be remedied, or the loss is not prejudicial.”
Of course we still have to determine what is a record, how will the court rule on the preservation of meta data or scanned images, structured and unstructured data. As the lawyers at the conference always like to respond to such questions – it depends. But the good news is that unless the loss of ESI results in prejudice or the court finds intent to destroy data there is far less chance of court imposed sanctions due to spoliation.
These changes should provide some comfort to organizations to finally get rid of much of the data on their ERP systems. All those transactions that track stock, record production events, measure inventory, technical system data, etc. So let’s start the shredding! Look to Auritas for defensible disposition with our product and service offerings.
Over the years we’ve always been impressed with the reasonable approach of the judges at the ARMA conferences when it comes to retention policy and disposition.