Record Retention to Manage Risk F. Jay Meyer Vice President & Senior Attorney TD Banknorth, N.A. Portland, Maine

Record Management Risks  Inability to Perform Transactions  Inability to Enforce or Defend Claims  Legal or Regulatory Noncompliance  Costs of Storing, Searching and Producing  Spoliation Penalties Goal: retain as long as needed for operational and legal reasons, then delete.

Record Program Elements  Record Management Policy  Retention Schedule  Administrative Mechanisms

Record Management Policies  Satisfy Legal, Operational Requirements  Non-Selective Retention and Deletion  Holds  Enforcement  all of the above plus  Composition and Addressing  Improper or Illicit Content  Ownership and Monitoring  Archiving Details

Retention Schedule  Arrange by Division or Department  Survey to Identify Broad Categories  Simple Name, Detailed Description  Specify Record Medium  Retention Period and Basis

Retention Periods  Legal Requirements  Tax Records: 7 Years?  Know Your Limitations  Mandatory Periods, Stages (e.g., Rule 17a-4)  Life Plus  Permanent?  Operational Requirements

Administering Record Program  Functions  Labeling  Inventory  Storage and Retrieval  Destruction  Holds  Manual  Automated  Third Party

Deletion  Delete Routinely Under a Policy “It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).  Delete Thoroughly and Non-Selectively  Holds: Suspend Routine Deletion

Holds  When: Anticipated Claim or Investigation  Necessary Steps  Identify and Preserve Relevant Records  Notify and Monitor Affected Individuals  Adjust Routine Archiving and Deletion  Retain Backups  Penalties for Spoliation

Electronic Record Types  (Traditional, IM, Text Messaging)  Application Files (Word, Spreadsheet, Database)  Web Content (HTML files)  Images (Photos, Analog and Digital Video)  Phone (Dialing/Billing, Voice Mail, VOIP)

The Challenges of  Fast, Convenient and Informal  Easily Copied, Edited and Forwarded  Intangible; Difficult to Track and Manage  Instant Messaging: Difficult to Document

Archiving Electronic Records  Separate the Wheat from the Chaff  Print and File  Electronic  File Type and Location  Server vs. Desktop  Labeling, Dating and Versions  Legal Requirements (e.g., Rule 17a-4)  Don’t Rely on Backups!

Automated Electronic Archiving  Automatic Capture  Automatic Retention  “Dumb” (Uniform Period)  “Smart” (Segregation)  Automatic Deletion  Working vs. Archive Copy  Safe Harbor under F.R.Civ.P. 37  Holds

ANY QUESTIONS?