Last week I blogged about your Document Retention Policy. As part of that policy, you will set forth an automatic email destruction date. For example, your policy could state that after four years all emails not pulled aside for relative retention reasons will be destroyed. You really don’t need to keep all the thousands and thousands of emails from four years ago related to solicitations, clarifications, confirmations, directions and meetings for beer. It is costing you to keep it. So get rid of it.
The Policy should be understood and followed by all employees, and employees who don’t follow it should be disciplined. Yes, it is that important. The Policy should be periodically audited for compliance and reviewed for legal and technology updates.
Your Document Retention Policy should also deal with “The Litigation Hold.” When litigation is ‘reasonably foreseeable’ you have to put the brakes on any document destruction. As a party to a lawsuit you have a duty to preserve evidence. The Policy should set forth who is in charge of declaring a Litigation Hold and what to do when one is in place.
The question then becomes when is litigation reasonably foreseeable? Well, service of lawsuit certainly qualifies. At that point you’ve been sued. But a demand letter or a legitimate verbal threat of litigation is also considered a reasonably foreseeable event, as is any initial investigation by any governmental or law enforcement agency. An incident or accident involving a property or personal injury also qualifies. In such situations, or in similar matters, it is best to consult with your attorney.