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Records Retention

The need for a Record Retention Policy arises in light of Federal Rules of Civil Procedure relating directly to document and data retention, including electronic documents and e-data. The Rules establish procedures for discovery by litigation opponents of electronic information. The Rules also provide protections against sanctions being imposed on a litigant in the event that information which could be relevant to the case has been destroyed pursuant to a document or information retention policy. Although the Rules technically apply only in cases in federal court, the principles are likely to be applied by any court.

There are two basic concepts raised by the Rules — general and specific. The specific is that if Colby has notice that a claim which could end up in court has been or is reasonably likely to be asserted against it, then Colby must place a “litigation hold” on the destruction of documents (electronic or hard copy) which are relevant to the case or may lead to the discovery of relevant evidence. Simply put, if Colby has notice that it might get sued, it must take affirmative steps to preserve information, including sending notice to everyone at Colby who might have information and instructing them not to destroy any documents or data, and putting a hold on, or stop to, any automatic destruction processes.

The general concept is that it is in Colby’s interest to implement retention procedures that result in the destruction of documents and data which do not need to be retained either for legal or institutional reasons. There are a number of reasons why retention procedures make sense, four of which are that:

  1. the Rules state that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine, good-faith operation of an electronic information system”;
  2. the cost to the College of producing discoverable information will be lower if there is less information to produce;
  3. variations in destruction practices by individuals in the absence of a retention policy could cause a court to infer that information was destroyed when it should not have been; and
  4. it would relieve a significant burden on the College in the storing of data and documents for a period longer than required by law or in the College’s interest.

Data/Record Retention Team