Question: If a corporation becomes the target of a civil lawsuit or criminal investigation, the company may be required to turn over any documents in its files relating to the matter during the discovery stage of litigation. These documents may include legal documents, contracts, e-mail, faxes, letters, interoffice memorandums, notebooks, diaries, and other materials, even if they are kept in personal files in the homes of directors or officers. Under the current Federal Rules of Civil Procedure, which govern civil litigation procedures (see Chapter 3), a defendant in a lawsuit must disclose all relevant electronic data compilations and documents, as well as all relevant paper documents. Although certain documents or data might free a company of any liability arising from a claim, others might serve to substantiate a civil claim or criminal charge. It is also possible that information contained in a document-an interoffice e-mail memo, for example (or even a memo referring to that memo)-could be used to convince a jury that the company or its directors or officers had condoned a certain action that they later denied condoning. Which E-Documents Should Be Retained? How does a company decide which e-documents should be retained and which should be destroyed?
By law, corporations are required to keep certain types of documents, such as those specified in the Code of Federal Regulations and in regulations issued by government agencies, such as the Occupational Safety and Health Administration. Most businesses today have a document-retention policy. Generally, any records that the company is not legally required to keep or that the company is sure it will have no legal need for should be removed from the files and destroyed. A partnership agreement, for example, should be kept. A memo about last year's company picnic, however, should be removed from the files and destroyed; obviously, it is just taking up storage space. Modifications May Be Necessary during an Investigation If the company becomes the target of an investigation, it usually must modify its document-retention policy until the investigation has been completed. Company officers, after receiving a subpoena to produce specific types of documents, should instruct the appropriate employees not to destroy relevant papers or e-documents that would otherwise be disposed of as part of the company's normal document-retention program. Generally, to avoid being charged with obstruction of justice, company officials must always exercise good faith in deciding which documents should or should not be destroyed when attempting to comply with a subpoena. The specter of criminal prosecution would appear to encourage the retention of even those documents that are only remotely related to the dispute-at least until it has been resolved.
CHECKLIST FOR AN E-DOCUMENT-RETENTION POLICY
1 Develop guidelines that let employees know not only which e-documents should be retained and deleted but also which types of documents should not be created in the first place.
2 Find out which documents must be retained under the Code of Federal Regulations and under other government agency regulations to which your corporation is subject.
3 Retain other e-documents only if their retention is in the corporation's interest.
4 If certain corporate documents are subpoenaed, modify your document-retention policy to retain any document that is even remotely related to the dispute until the legal action has been resolved.