P2P

71 I L T A N E T . O R G Organization. Cushman & Wakefield had produced "hundreds of thousands" of documents, but not what the court wanted. And whether it honestly couldn't find them or simply didn't want to, the firm incurred fines of $10,000 per day until the documents were forthcoming. It illustrates another potential cost of not being in control of data in an efficient way. 3 In summary, and given this thicket of regulatory and legislative complication, it follows that the less data firms retain unnecessarily, the less risk they're exposed to, the less resource they need to manage it, and the easier it is to control. So much for why firms should get on top of record retention, disposition and destruction; next, what are the challenges of doing so? The challenges of retention and disposition It's probably fair to say – as with much else in life – that if data retention and disposition was easy, everyone would be doing it. The challenge is that there are a lot of moving parts, and it's especially hard at the beginning because that's the point at which firms must confront and tame the largest volume of data. The first step is understanding what you have, in both electronic and physical formats. Almost inevitably material will straddle many systems, media and decades and will be dispersed across several sites, including remote archive facilities. Law firms must also take into consideration that it's not just work product that they're the stewards of. There will also be other administrative records, most notably HR files and financial records. Once the firm knows what it has, it then needs to determine the "trigger" dates for everything held. These will be used to populate the firm's retention schedule – we will discuss this more later. The trigger date is the date that triggers some action in respect of the data, either when it should be sent off site, archived, destroyed, or returned to the client. Returning material to clients is jurisdiction- dependent. In the US, for example, most Bar Associations see matter material as belonging to the client and therefore clients should be contacted and given the option of having it returned or destroyed. Conversely, in the UK, firms don't routinely return material to clients unless there's a specific request to do so from the client, or it's in Outside Counsel Guidelines (OCGs), or it's stipulated in the engagement letter. (Unsurprisingly, as firms realize the full cost and complexity of record retention and disposition, they're increasingly likely to cover the issues in client engagement letters, which might include details such as what defined step closes the matter, what will be returned to the client, what happens if the firm can't find the client at that point, what will be destroyed, etc. But that doesn't help firms dealing with material acquired before such provisions were in place.) Returning to trigger dates – these will also be determined by jurisdiction. The retention period for matter material is generally at least five years in most jurisdictions and typically either seven or 10 years. But what does that actually mean? Is it 10 years after the matter closed, or 10 years from when the firm no longer worked with the client, or 10 years after billing activity ceased even if the matter remains open? (Some matters are never closed.) Firms need to make a clear decision on this. Meanwhile for HR records, the trigger date will likely be a predefined period after the date the individual left the firm. And financial records are typically ready for review seven years on from the end of the financial year they relate to. But caution needs to be exercised because, as noted, retention periods will change from jurisdiction to jurisdiction, and so within a global firm, potentially from office to office.

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