This article explores the creation of document retention policy best practices and provides solutions for retention of electronic documents. This article first appeared in The Public Lawyer Volume 12, No.1 Winter 2004. Molly Kilmer Flood, M.L.I.S, Research Specialist

Have you ever woken up in the middle of the night because of a chilling work-related nightmare? Instead of enjoying peaceful slumber, your subconscious is filled with dreams of disastrous meetings with clients, missed court deadlines, or backstabbing co-workers. If you work for a firm, association, or corporation without a document retention policy, reality might soon resemble a very bad dream. With the July 2002 adoption of the Sarbanes-Oxley Act, proper document management is not only prudent –it’s the law. Improperly disposing of responsive documents can get you and your firm or business in some serious hot water. A document retention policy establishes rules and guidelines for the storage and possible destruction of company documents and records. Document retention policies assist in the organization of crucial materials, save time and resources, and most importantly, help you stay legally compliant.

The planning and creation of a document retention policy is often the most difficult stage of the process. These policies are not a recent by-product of the Sarbanes-Oxley Act. Many firms and businesses, including Arthur Andersen, already had retention procedures on the books. These plans were often confusing, difficult to enforce, and not well publicized. Your firm or business must develop an effective plan that can easily fit into your work culture. Focus groups are extremely helpful tools during this stage of development. Attorneys, legal assistants, secretaries, and other staff should be surveyed. Their input is invaluable, and the program should be designed with their needs in mind. If the plan is too cumbersome, complicated or time-consuming, there is a great chance it will be neglected.

All document retention policies must comply with state and local laws regarding records management. (Sarbanes-Oxley requires auditing firms to maintain certain documents for up to seven years.) After all legal obligations are met, you will have to determine what other documents should be preserved. Certain documents must be kept even without the threat of litigation or an investigation. Previous document requests from government agencies or other cases or matters may help you determine what the scope of future requests may be. It is important to develop a plan that will archive the necessary documents but will not bankrupt your firm with excessive off-site storage fees. Document retention policies are not just about archiving records and other materials. Effective policies also discuss what documents can be thrown away without consequence.

Once the plan is in place, implementation can be tricky. How can specific information be vigilantly maintained during a busy workday? Technology plays a major role during this stage. Your firm or business’s information technology staff needs to take an active role in the retention policy planning and implantation process. While many law firms still have turf wars for file room space, a substantial amount of information is now stored electronically. These documents may be imaged and stored in databases, saved in word processing programs like Microsoft Word or Corel Word Perfect, or are communications via e-mail. Your IT professionals will be better informed about your internal technology capabilities and should be able to offers suggestions on effective data storage.

Modern document retention programs typically involve extensive electronic data warehouses. Many firms or businesses do not have the time, money, or IT staff to develop a massive homegrown document database. There is software available that can help you keep tabs on all internal work product. Document management software like iManage and Worldox can be an effective way of archiving documents without breaking the bank. These programs are becoming a software staple in many law offices. This software archives and organizes all internal electronic documents. These documents are then stored on a shared server that can be accessed by all users. (Access to case-specific and confidential documents can be restricted to individuals actively working on the case.) Document management programs work directly with your word processing software. After a document is saved, a document profile window appears. This profile contains fields such as: document name, author, client/matter number, document type, an expanded description field, and document history. All documents are then stored in the firm’s document library. Documents that should be archived should be flagged and uniformly coded when the document profile is created. More specific information should be written in the document profile’s expanded description field. A basic system search could potentially yield all documents responsive to your document retention policy.

A document retention policy may look fabulous on paper, but every person on your staff must be made aware of its existence. Mandatory meetings and training sessions are excellent ways to socialize your staff to this policy change. The creation of manuals and F.A.Q.s describing the plan and its effect on document review and storage will also be extremely helpful. These materials should be prominently posted in heavy traffic areas and on your company’s intranet, portal, or electronic bulletin board (if applicable). Training sessions should be required for all new employees. To ensure that your firm is ready for any action from the state or federal government, you may want to conduct mock document requests. Your firm or business will be all the more prepared if they have experienced regular rehearsals.

Document retention policies are a necessary hassle. In this era of heightened government regulation, document retention policies simply make good business sense, and they can keep your firm or business out of legal hot water. You will also benefit from the improved organization of your firm or business’s documents.

All of this good news should help you sleep at night.

* Mention of a company, product, or service does not indicate endorsement or support by the American Bar Association or the authors.