Confronting Court Document Retention Policy in the Era of Electronic Content

88_document retentionIn Animal House (one of my favorite movies), the trial scene has its own instructive moral. The Dean, through his smarmy hench-students, hauls the fun-loving and rule-oblivious Delta brothers into Student Court to answer for their “too numerous to name” peccadillos. The allegations are (or would be, if allowed to be heard) supported by extensive evidence, for the simple reason that most are true.

The “defense,” if it could be called that, consists of asserting that the charges REALLY constitute an attack on the American way of life.

Sounds ridiculous; and it is. Except… who hasn’t been involved in a discussion where, just as the group begins to close in on a solution, someone attaches an almost completely unrelated set of concerns and insists that those must be resolved before moving forward?

This principle came to mind as I listened to an excellent presentation at a court conference on revising and implementing policies and procedures for purging documents and files as courts move to paper on demand.

Consider: Most “legacy” record retention policies (and most record retention policies today are legacy) were promulgated at a time when the primary concern was storage space, or more accurately, the cost and lack thereof. The policies were primarily intended to make sure that records that might one day be needed again not be prematurely discarded. Indeed, most policies required that important records be indefinitely, if not permanently, retained.

Also, there is a stark difference between records retention in the commercial world and the courts, and the lines are often mistakenly blurred. In the commercial world information can be a discoverable liability, and in many cases should be purged as soon as possible. In the courts: justice, public safety and service are the primary goals, and purging is often an inhibitor.

Tellingly, there was little or no “requirement” to purge (absent case-specific court orders).

Most courts, in my experience, only embarked on purging documents when space constraints forced the issue. Otherwise, little, if anything, was ever actually destroyed. Instead, documents and files were moved into increasingly difficult to access deep storage. Generally, the difficulty was thought to be the effort required to actually go through the documents and files, identify (and confirm) what is eligible for purge, physically remove them and then securely dispose of them.

Fast forward to the present. For starters, the question of physical space is no longer an issue to paper on demand courts. Granted, there are cost and process issues with long-term content storage; but they are most certainly NOT the kind of current constraint and the level of expense providing physical space to store paper.

More importantly, using paper on demand with configurable workflow, all the identification, verification and actual purging problems can be managed in a relatively straightforward, efficient, flexible (in case rules change) and economical manner.

So, problem solved, right?

Hah! If you believe that, then I’ve got this great deal on Alaska gold mining stock, if you’re interested….

Thanks for solving the problems; but it now turns out those aren’t the problems that are at the top of anyone’s list these days. What do you MEAN you can afford to keep everything forever? People have a RIGHT to have old matters go away…

In fact, one of the many consequences of loss of the “effective inaccessibility” of paper documents is a fundamental conflict between those with an interest in keeping access to everything permanently and those with an interest in making the information as inaccessible as possible, as soon as possible.

One (fairly standard, I’ll bet) interim policy is to “publicly” delete, but internally retain (for those with authorization). Let the Rule Drafting begin for THAT one!

So, on this subject, I line up with the Deltas: We’re probably having the wrong discussion. Document “retention” and “purging” are really anachronistic concepts in an era of electronic documents and ECM. What would be far more constructive, in my humble opinion, would be to discuss how to appropriately manage all aspects of content lifecycle – including the “post-active” phases – in a paper on demand world, develop appropriate policies and design the enabling systems to allow ongoing management of content lifecycles using modern tools.

 

 

One thought on “Confronting Court Document Retention Policy in the Era of Electronic Content

  1. Good article. Interesting that Arizona is still struggling with retention schedules. One side note are cases with historical significance. People (we) want to save the actual paper as some sort of anthropological find.

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