Division of Archives and Records Service

eDiscovery, Litigation, and Utah's Retention Schedules

Joseph Sharp
October 20, 2011

On September 22nd I attended the Intermountain eDiscovery 2011 conference in Salt Lake City. At the conference Ralph C. Losey, of Jackson Lewis LLP, discussed the challenges and latest solutions to electronic discovery. Three significant points were: 1) If you “reasonably” expect litigation, then you must stop all records destruction; 2) In Manhattan it is considered gross negligence if an IT department routinely wipes a computer’s hard-drive when an employee leaves the company, or if email systems automatically delete messages due to space constraints or arbitrary time limits; and, 3) Information management is the best place to spend money to reduce risk before litigation.

What does this mean for records managers? If you are reasonably expecting litigation, even if the actual litigation process has not begun, you must immediately stop the destruction of all records that are potentially relevant to the case. Occasionally in Utah’s general retention schedules the retention period reads: “X years and then destroy; provided any pending litigation has been resolved.” It is always assumed that litigation immediately halts all normal records destruction processes, even if the schedule does not specifically include the litigation clause.  

Electronic records are subject to the same retention schedules as their analog counterparts (and not just in Manhattan). Retention schedules are format neutral. Regardless of the format a record is subject to the approved retention schedule. For example, if correspondence is received from the post office or email account – or dare I suggest a comment on a blog? – the record is still subject to the same retention period if it is the same type of record used for the same function by an entity. Utah’s general retention schedules are concerned with the content of records, not the medium used to transmit it. Thus, if an IT department is wiping computer hard-drives or an email system is deleting content without following the correct retention schedule there could be problems. These activities might be considered unauthorized destruction of government records and could lead to disciplinary action or misdemeanor charges under Utah’s Public Records Management Act (63A-12-105), not to mention the risk that an entity is exposed to by such behavior.

Echoing Ralph Losey’s comments earlier in the day, Brandon H. Pace, Legal Counsel for eBay, stated that: “data is free to store, but it is not free to use.” Losey noted that the rough cost to review an electronic record in today’s eDiscovery environment is roughly $5.00 per document. Given the explosion of documents created today there is potential for eDiscovery to cost more than the actual case is worth. Mark Smith, Barker Marquart LLP, and Loren Washburn, Clyde Snow & Sessions, noted that in 1999 the eDiscovery industry was a zero dollar-a-year industry, but in 2010 it was a $5-10 billion dollar industry. Additionally, eDiscovery costs in 2011 have doubled since 2010. eDiscovery is becoming more expensive and more common. This is an issue that is not going to go away.

Effective records management programs reduce the risk of litigation. Equally important is the fact that money spent on information management can greatly reduce the cost of eDiscovery should litigation occur. Rather than searching through millions of documents (or more?!) an effective records management program can narrow, refine, and direct the search reducing the number of items that need to be reviewed. At the cost of $5.00 per document the savings can be tremendous.