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Articles in this Series Disclosure for litigation or regulator
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Disclosure, Litigation Readiness and Document RetentionThe Pyramid of PreparednessÅ This is one of a series of five linked articles on this subject Æ 4. A document retention policyDisclosure relates to a particular piece of litigation, and litigation readiness is getting prepared for any litigation. Document retention goes one stage further back – devising and maintaining a policy which ensures that only the important stuff stays in the system anyway. The expression "the important stuff" is deliberately vague. This is a wider category than "litigation ready" information with its connotations of "relevance", "materiality" or the CPR requirements about supporting or adversely affecting a case. It relates to all the documents created or stored in your systems. The process also differs from litigation readiness in that it involves catching the crud before (or soon after) it gets into the system as a standing set of procedures, whereas litigation readiness generally implies a retrospective exercise. There is of course overlap between the concepts – a sensible document retention policy should leave you litigation ready without a retrospective exercise. The expression "document retention" is perhaps something of a misnomer anyway, since for many people its aim is the opposite – to dispose of as much as possible consistent with the requirements of the business, and the foreseeable litigation, regulatory or other defined (but unquantifiable) purposes. It does not really matter which direction you approach this from. You are either disposing of everything which does not meet certain criteria or you are keeping only the stuff which does. Defining criteria Either way, you define the criteria which decide whether a class of documents is in or out. Broad categorisations such as custodians might be applied as well as more focused exercises using key words or other finely-tuned traps. You might keep one class of documents for one period and another class for a different period. The word "retention" also understates what you might do as part of this regime. There is the opportunity to set rules for flagging documents at the moment of creation as "Confidential", "Privileged" or "Personal Data" which will enable you to fillet your selections when the need arises (you might also think that these labels are potential hostages to fortune, but you should at least think about it). These flags will not necessarily be definitive when the crunch comes – something can be privileged in one context but not in another, for example – but they serve as a simple mechanism for pulling out and examining the difficult documents in a hurry. These ideas are usually easily achieved as a technical matter, with default headings, filing and flagging tools, but less so as a human one. It needs some thought as well as knowledge of the potential requirements, to devise a system which works without oppressing the work-force – an oppressed work-force, like water, finds a way round obstructions somehow.
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