Description

Document Retention Policy

Document Retention Policy Preparation Form – We recommend that you gather the information in this form prior to accessing the online questionnaire.  Doing so will help you efficiently create your custom Document Retention Policy.

Summary

This Document Retention Policy establishes how a company expects its employees to manage company information. Another common name for a Document Retention Policy is a Recordkeeping Policy or a Records Maintenance Policy. Companies keep their company information in electronic files, emails, hard copies, or other formats.  As such, companies and their employees must manage this information, from creation through destruction, according to applicable laws and the company’s particular legal and business needs.  Employers may incorporate this employment policy into an employee handbook or use it as a stand-alone policy document.

Details

Companies should tailor this policy to their specific needs and risk profile to ensure that it achieves the company’s goals.  No single policy is adequate for all companies.  Likewise, companies with subsidiaries should compare their various retention schedules to inconsistencies with the parent company.  It may make sense for companies to have different retention schedules among subsidiaries if the subsidiaries are in different industries.  Companies involved in mergers should conduct post-acquisition checks of record retention policies.  This helps determine where such policies may need to be made uniform with the parent company’s policy.

Functions

A Document Retention Policy serves many important functions.  For example, it:

• Establishes that the company is committed to complying with all document retention laws;
• Helps protect records that may be relevant to a pending or future lawsuit or government investigation from being destroyed before the discovery process;
• Describes how to comply with a litigation hold;
• Communicates employer expectations about which records employees may discard and when;
• Provides employers with a legal defense to some document production requests when certain records were previously deleted or destroyed; and
• Safeguards proprietary information, which can help companies manage and reduce operational and reputational risks

Potential Legal Defense

A document retention policy reduces a company’s likelihood of developing an unmanageable amount of information by providing a procedure for employees to discard legally most types of records. A document retention policy also may provide employers a legal defense in litigation if:

• Certain records relevant to a litigation or government investigation were previously destroyed by company employees or not backed up on company servers.
• The company exercised reasonable care to prevent and promptly correct any improperly destroyed information.

Drafting Considerations

A properly drafted and enforced document retention policy should:

• Require that employees suspend all disposal procedures during a litigation hold.
• Identify who employees should contact if they are unsure whether to dispose of a certain record.
• Include a records retention schedule.
• State that the employer will regularly audit employee files and email inboxes to ensure that employees are retaining and discarding records consistently with the company’s policy.

Employee Training and Acknowledgment

Employers should properly train all employees regarding document retention and litigation hold procedures to minimize instances of lost or improperly destroyed records.  In general, employees should begin this training during orientation.  Additionally, employees should repeat this training at least once annually.  Employers should reinforce each training session by having employees sign a certification acknowledging that they 1) attended the training and 2) understand the Document Retention Policy’s requirements.