Over the last few years, courts have paid more attention to the early stages of litigation and the steps litigants must take to ensure that their documents are available for discovery. Historically, that meant making sure the parties had collected things from their file cabinets. Today, the exercise is a more complicated combination of document retention policies, litigation holds and coordination with employees and others.
At a high level, a company’s document retention policy should retain only e-mails with business record significance, to avoid the dangers associated with disclosing damaging information that might include personal communications. Such a system should include “litigation holds” to prevent destruction of documents related to ongoing or anticipated litigation. That general pronouncement is often of little use in real world cases, as litigants in recent cases have discovered.
