Michael Moore has an informative post on Developing a Record Retention Policy on his Pennsylvania Employment Law Blog. Michael raises a particularly insightful issue:
Anticipate the arguments that may be made and inferences that could be drawn from the destruction of certain documents and weigh it against the expense of retaining and producing the documents.
In a comment left on my Document Retention and Electronic Discovery post Michael pointed out that businesses need to carefully consider how the destruction of records pursuant to a policy might play to a jury. Often it may be important for a business to retain the information rather than destroy it. He warns,
The employer that destroys old e-mails "pursuant to its record retention policy" is left with the inference that the e-mail may have existed and, even worse, it was destroyed in order to keep the truth from coming out.
I agree that you must carefully consider these policies. That is why it is so important to assemble a team in order to develop a sound document retention policy. I would caution businesses to avoid pulling a form, changing the names and feel like you are covered when it comes to record retention. You should take into account the various ways your organization stores information and be sure to get the IT staff involved in the process. This will help you determine whether it is beneficial and practical to keep or destroy certain information. But whatever happens, do not forget to implement a litigation hold in the event of a dispute.
Part of the trial lawyer’s job in business cases is explaining to the jury how a document retention policy works, why it was implemented and the methods by which the business consistently follows it policy. Developing trust can help alleviate the thoughts about businesses just wanting to keep the truth from coming out.