There has been a plethora of articles recently on litigation holds and new court rules mandating the preservation of records after a dispute that may result in litigation arises. While the points taken in these articles are well taken, they don’t address another extremely important reason – perhaps more paramount than compliance with Court rules – to develop and institute a sound records retention policy. Evidence is king, and if you don’t retain what you need to prove what happened it never occurred as far as a court is concerned.
One of my favorite movies has always been A Few Good Men, starring Tom Cruise, Demi Moore, and Jack Nicholson. In one scene the lawyers for the defendants are discussing whether to call Colonel Jessup (Nicholson) to the stand based on the assumption by Commander Galloway (Moore) that he ordered the illegal act. In response, Lieutenant Caffey (Cruise) reacts: “And of course you have proof of that. Oh that’s right, I forgot, you were absent the day they taught law at law school. It doesn’t matter what I believe, it only matters what I can prove.”
The scene illustrates a fine, but important distinction. By the time cases hit the inside of a court room, there are often two different realities. The first is what actually happened. It is usually what every person with a personal connection to the facts of the case knows occurred. The second is the story the judge or jury hears based on what the parties can prove through the evidence presented. This second version, which can be different than the first, is the one on which the outcome of a case can often be determined.
A well developed records retention policy takes into account what records could be needed to prove a case should a legal problem develop. Consideration should be given to the nature of the work or transaction you routinely participate in, the possible claims that could arise out of your daily activities, and the manner in which you routinely conduct your operations (i.e. electronically, on paper, or orally). Each one of these brings with it different challenges, and one size does not fit all when it comes to how the records policy is developed.
Nothing is more frustrating to a client and his or her lawyer than being unable to prosecute or defend a claim because the evidence that once existed has been disposed of or lost. Develop a good plan and stick to it. You will both then be able to meet your obligations to the court as a litigant and, more importantly, be able to help prove what actually happened when the time comes.