Risky Business

By Minton, Carolyn R. A. | ARMA Records Management Quarterly, October 1993 | Go to article overview

Risky Business


Minton, Carolyn R. A., ARMA Records Management Quarterly


"What are the risks of not having a company Records Retention Schedule?" This question was asked at a Pacific Coast Gas Association Records Management Workshop I attended last March. My first thought was one of horror--how could a company operate without an official company records retention policy? Yet as we all know, there are more companies operating without a records retention policy than there are companies operating with one.

Why do companies keep records? The most compelling reasons are that the law requires them to do so, and that they need records to function efficiently. But once the retention of records has complied with laws, regulations, and operating requirements, record destruction can be carried out within the regular course of business. The fewer company records available for discovery requests, the less likelihood of liability. As long as companies understand their responsibilities and ensure that their employees are accurately creating and maintaining company records, they need not fear their own documentation. Records retention programs legitimately protect companies from litigation risks arising from their own documents. Companies with records retention policies have reported lower litigation costs.

The book reviewed for this issue, Destruction of Evidence, answers the question, "What are the risks of not having a company Records Retention Schedule?" and offers valuable information for companies that do not have a document management program. It can assist lawyers who feel pressured to destroy evidence and are themselves unclear as to statutes governing the legal requirements of company records. The authors denote there is no legal definition of the phrase 'destruction of evidence" but for the purpose of this book, "destruction of evidence" means ... rendering discoverable matter permanently unavailable to the court and the opposing party.

This treatise provides a comprehensive and systematic analysis of laws governing the destruction of evidence, and serves as a guide to the practical implications for lawyers in a variety of practice areas. Lawyers work in the ethically dangerous domain between what they know to be true and what they think the other side can prove. Consequently, companies are urged to establish document management programs. These programs must be rigorously enforced by management in order to minimize liability. Just one employee maintaining his own personal set of records can undermine an entire document management program.

Destruction of Evidence covers various aspects of the spoliation problem, including criminal statutes, reporting statutes, ethical rules, discovery sanctions, evidentiary sanctions, contempt and tort liability. The authors recognize the growing popularity of document management programs; they also recognize the importance of companies understanding the legitimate scope of these programs and their uses. Whether evidence is destroyed systematically or ad hoc, this activity merits serious study and understanding. …

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