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Document Retention and the Legal Issues of Electronically Stored Information

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All businesses run on documentation and construction is no exception. However, most documents used in the construction process need to be discoverable for legal reasons. You may have to present a document when involved in litigation or arbitration. Everything from drawings and specs to personal email chains and jobsite photos are fair game. To be able to manage all of these documents successfully, you need a document retention policy, or DRP.

According to the National Federation of Independent Business, there are three primary reasons to have a DRP:

  1. It ensures you will have the right documentation when you need it.

  2. It helps protect your interests when you are in litigation.

  3. It helps you make sure you are complying with federal and state laws and regulations.

The NFIB offers a comprehensive guide to developing a DRP. The guide covers the steps needed for creating your policy as well as suggested document retention guidelines. Without a well laid out DRP, your costs in producing requested documents can escalate drastically, and also compromise your legal position.

DRP Benefits & Challenges

Your DRP is of critical interest when you face litigation or enter arbitration proceedings. For example, it’s not unusual for a judge or jury to assume that if you cannot provide a document that’s been requested, that the document contains information you want to conceal. 

If you have a very clear DRP with sufficient evidence, then it will be easier to convince a court you disposed of the document without the intention of hiding information. 

It’s important to view your DRP as a living system. In other words, it must evolve with the times to account for the new risks inherent in electronically stored information. Surveys in 2015 point to some important areas to monitor so you can adjust your DRP and even the ways you view and handle electronically stored information.

Tracking the Electronic Record

A survey by global law firm Norton Rose Fulbright asked 800 corporate counsel from 26 countries to provide their insights on litigation trends and issues. Thirty-nine percent of respondents named regulations and investigations as the top legal challenges they face and 25% said they expected legal disputes to increase. Contract and labor disputes rounded out the respondents’ top three concerns. Their costs to business are staggering. Sixty-four percent of respondents put their annual spending on litigation at more than $500,000, with 19% saying they spend more than $10 million. 

A portion of the cost of litigation lies in the process of discovery, where various parties seek out information related to the case. One part of discovery involves searching through electronically stored information. This is an inexact science that is rapidly evolving, especially in the following three areas. 

1. The Mobile Device Quandary

Mobile devices figure prominently in electronic discovery, and 62% of U.S. respondents to the survey said they had to preserve or collect data from a mobile device for legal reasons. But, mobile devices pose unique challenges for businesses when trying to produce requested documentation for legal reasons. The problem begins with different mobile devices. Then, there’s the issue of how personal and business information is intermingled on mobile devices. According to lawyers with Law360, cloud-based storage, operating systems, management software, data protection, and encryption are all obstacles in making accurate discoveries. 

If the mobile device is part of a bring-your-own-device policy there are custody, control, and ownership issues that can affect reviewing or disclosing personal information. There are many types of data on mobile devices, including photos, videos, GPS locations, system logs, and search engine history that may be discovered in legal proceedings. Consequently, including data on mobile devices as part of your DRP requires careful thought, planning, and maybe even changes to how you incorporate mobile devices into your operations.

2. Self Preservation

Another trend in electronic discovery is concerned with less reliance on self preservation. When a company searches for, identifies, and preserves relevant information related to a legal case, it is called “self-preservation.” To meet the legal test, companies need to show that their efforts during self-preservation were reasonable in preserving electronic information. However, as cases get more complex, self preservation has a greater chance of compromising evidence. Legal counsel to companies have been relying on it less and less. That, in turn, is increasing the costs of doing E discovery.

3. Algorithms

There is a growing number of lawyers who are using predictive coding to uncover documents and electronically stored information for their cases. In fact, 57% of respondents to the Norton Rose Fulbright Survey said that they are using technology to help them review data during their discovery process. The implication is lower cost during the discovery stage of legal issues with the savings trickling down to clients. However, the startup costs in time and money are high, and case law on its use is not well-developed.

The foundation for strong document management is the DRP. When you use it properly, and review it regularly, you stand the best chance of ensuring you have the right documents at the right time, whether it’s for litigation and arbitration or everyday business processes. 


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