Electronically Stored Information- Document Retention Risks and Concerns

If a company is involved with litigation in the United States, it has a duty to locate all relevant information, data, and documents—including ESI that are relevant to the case. This can be quite onerous, as it requires:

• Familiarity with document retention policies
• Involvement with IT personnel
• Communication to “key players” of the litigation hold
• Location and retrieval of all relevant information wherever that information might be

The legal risks facing a company that fails to handle the above requirements in an economical/efficient manner can be tremendous. Companies have been sanctioned millions of dollars for failing to abide by ESI requirements or, even worse, have lost the respective lawsuits, costing even more. What can a company do to mitigate the legal risks surrounding document management to comply with US legal requirements?

1. Plan of Action

A company must take steps to develop an adequate data and document management plan. It is not too surprising that even the IT Department itself may not have an adequate understanding of where all of the electronically stored documents are considering the plethora of handheld devices that may store documents and other electronic information. Therefore, a company’s management and IT folks need to sit down and map out where all of the documents are located if possible. A document management plan should take the following steps into consideration:

• Assess the company’s current use of technology documents.
• Locate all in the company’s possession.
• Use technology to leverage legal requirements.
• Retain experts or outside consultants to above or to help implement systems/processes.
• Implement policies and procedures addressing all legal risks posed by ESI.

2. Risk Assessment of ESI

To implement an appropriate plan of action, a company must conduct a risk assessment of its processes and capabilities by:

• Seeking proposals of vendors (outside experts)
• A top-to-bottom analysis
• ESI and paper documents
• Hardware and software
• Management of data
• Retention of data
• Litigation holds
• Disaster preparedness

3. ESI Implementation

The legal risks facing companies in today’s legal and regulatory climate, especially in the United States, are enormous. Failure to implement a data and document management program that not only addresses a company’s business concerns but legal obligations as well can be disastrous. The development and implementation of an LRM program addressing these concerns is not a luxury but a necessity. It is highly recommended that a company implement a data and documentation management program that addresses ESI and all of its issues.

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