Saving Your Documents Can Save You Anne D. Harman, Esq. Bethany B. Swaton, Esq. Dinsmore & Shohl LLP 2100 Market Street, Wheeling (304)

© 2011 Dinsmore & Shohl LLP | Importance of Documents for Business Purposes n In 2010, estimate that 294 billion s sent each day n Sources of electronic information: PCs, laptops, smart phones (i.e., blackberries and Iphones), websites, data recorders, Ipads, jump drives, etc. n Difficulty determining what electronic information to keep and for how long

© 2011 Dinsmore & Shohl LLP | Laws Governing Retention n No universal law on document retention n Important to consider legal and business requirements – Legal: local, state, federal laws and regulations may mandate that certain documents be kept for a certain period of time – Business: business practices may require information be kept for a certain period of time n Common law duty to preserve documents and information when litigation is reasonably anticipated

© 2011 Dinsmore & Shohl LLP | Benefits of a Document Retention Policy n Lessens liability; n Puts clients in a position to easily access data that might be exculpatory, or at least, supportive of the company in defense of a claim; n Assist in settlement; n Aids the spirit of transparency; n Provides surety to the organization that it is retaining all records necessary to the business, regulatory, and legal needs of the organization; and n Provides guidance for destroying documents

© 2011 Dinsmore & Shohl LLP | Developing a Document Retention Policy n Consider the business, regulatory, and tax needs of the organization n Group together individuals from various parts of the organization to develop the policy – Management, finance, business, legal, and IT

© 2011 Dinsmore & Shohl LLP | Developing a Document Retention Policy n Not every document created must be kept pursuant to the policy; rather, only documents qualifying as a business record must be retained. – determine documents that can be classified as a special subset of information deemed to have some enduring value to an organization and warranting special attention concerning retention, accessibility, and retrieval n Documents that must be considered for retention: – Paper documents – Electronic documents including Word processing documents, , web pages

© 2011 Dinsmore & Shohl LLP | Developing a Document Retention Policy n Determining a retention schedule: – Outside of industry regulations and legal requirements, a business need only keep documents and information as long as necessary for business purposes. – If a policy limits the length of time of retention, the company will have less information to search and review if served with a document request.

© 2011 Dinsmore & Shohl LLP | Developing a Document Retention Policy n Understand and evaluate the records management practices already in place – Determine where and how documents and information are kept (i.e., paper form, backup tapes, filing cabinets, computer files, etc.) – Determine backup procedures used (central servers, backup tapes, other imaging systems) n Determine individuals who may have responsive business documents n Using the retention guidelines, determine whether documents currently kept should be retained or destroyed

© 2011 Dinsmore & Shohl LLP | Retention Policy Provisions n In general, the policy must serve a legitimate business purpose and not be a means for cleansing files prior to litigation. – Facilitating easier access to stored information; – Controlling growth of information; – Reducing operating and storage costs; – Improving efficiency and productivity. n The policy must be flexible to be suspended should a litigation hold be necessary.

© 2011 Dinsmore & Shohl LLP | Retention Policy Provisions n Period of time during which records have value; n Period of time records are considered to be active and thus maintained in the primary filing area; n Point in time when records can reasonably be transferred to a secondary storage facility; n Method of records disposal or disposition; n Procedures for operating and ensuring compliance with the retention and disposition program; n Relationship between records retention and other aspects of records management program (i.e., legal hold policy, e- discovery response policy, a data privacy policy, usage policy)

© 2011 Dinsmore & Shohl LLP | Retention n may be included in the overall document retention policy. n Typical features for retaining – User mailbox size limitations (quota); – Automatic deletion of user mailbox contents n Deletion after a certain period of days coupled with options so that the user can move of significance to an appropriate alternative storage location – Extended storage options – Restriction on local storage n Prohibit users from placing information on local PC hard drives (other devices) to avoid the problem that local hard drives cannot be accessed by others and are not backed up.

© 2011 Dinsmore & Shohl LLP | Aids for Retaining Documents n Computer software filtering programs that can be customized to search messages, attachment, and other electronically-stored information for key words to save electronic information n Backup tapes n Servers

© 2011 Dinsmore & Shohl LLP | Implementation and Enforcement n Develop enforcement procedures to ensure that all employees follow the policy and its procedures. n Create detailed logs of record-purging and back-up activities. n Any policy must be communicated to all employees. n Periodically review and audit to determine if changes must be made.

© 2011 Dinsmore & Shohl LLP | Litigation Hold n Once any judicial or investigative proceeding is contemplated or begins, companies should automatically suspend the retention policy. n Implementing a litigation hold involves two questions: – When does the duty to preserve begin for litigation-related records? – What evidence must be preserved?

© 2011 Dinsmore & Shohl LLP | Litigation Hold – Preserving Documents n Identify, locate, and maintain information relevant to specific, predictable, and identifiable litigation n The duty to preserve electronic and paper documents supersedes records management policies that would otherwise result in the destruction of records and other information. However, the business must continue in its business operations. n Businesses have a duty to balance in good faith the need to preserve evidence and the need to continue operations.

© 2011 Dinsmore & Shohl LLP | Litigation Hold – Notice to Employees n Businesses need to communicate to affected persons the need for and scope of preserving relevant records n Notice to employees of the need to preserve documents should include: – Describe the kind of information that must be preserved so that the affected custodians of data can segregate and preserve identified files and data; – Address preservation of data in multiple locations; and – Include that the complete suspension of normal document management policies is not required n Send notice to the following: – Employees reasonably likely to maintain documents relevant to the litigation or investigation; – IT department and any third parties that provide IT services

© 2011 Dinsmore & Shohl LLP | Consequences and Sanctions n Rule 26 of the Federal and West Virginia Rules of Civil Procedure requires the disclosure of relevant information. n Failure to comply with production of relevant information can lead to court-imposed sanctions. – Morgan Stanley - $1.4 billion in compensatory and punitive damages after being found guilty of discovery abuses stemming from its lack of knowledge regarding the storage of discoverable information – UBS Systems (Zubulake line)

© 2011 Dinsmore & Shohl LLP | Consequences and Sanctions n Rule 37 contains a safe harbor for companies who fail to provide electronically-stored information lost as a result of the routine, good-faith operation of an electronic document retention system. n Courts have found that destruction of relevant electronic evidence, if done routinely in the ordinary course of business, does not automatically give rise to an inference of knowledge of specific documents destruction, must less intent to destroy those documents for litigation-related purposes. – Courts focus on culpability: in the circumstances of the present case, should a party bear culpability and consequences for the loss of electronic data (i.e., failing to take reasonable steps to ensure a good faith effort to preserve relevant electronic data may lead to spoliation instructions or other sanctions).

Anne D. Harman, Esq. Bethany B. Swaton, Esq. (304)