In movies about spies, self-destructing messages offer a convenient way to secretly communicate. While businesses sometimes have a similar need for privacy, self-destructing messages are not a viable option. For a variety of reasons, businesses will want to destroy and retain (for varying lengths of time and possibly in various forms) some of the multitude of electronic documents they generate. In order to manage risk, increase efficiency and reduce storage costs, a well-considered document retention and destruction policy should be part of any business’ operations.
A document retention and destruction policy becomes even more critical when litigation is anticipated or commenced. A company that can efficiently search for and locate pertinent documents will ultimately reduce legal costs compared with one that stores and destroys its documents in a haphazard and undocumented way.
In British Columbia, once litigation has been commenced, a party has an obligation to list and produce its relevant documents. A “document” as defined in the Supreme Court Civil Rules is not simply a piece of paper. It is any “record of a permanent or semi-permanent character and any information recorded or stored by means of any device.” The definition of “document” is broad and includes all forms of electronically stored information, media and metadata.
The existence of a document retention and destruction policy will also assist with explaining to the court and other parties why certain documents were destroyed and, in most situations, will be sufficient to dispel any argument of spoliation. In Canada, spoliation of evidence generally refers to the intentional destruction of relevant evidence for the purpose of influencing the outcome of the litigation. The remedy for spoliation is typically an evidentiary presumption made by the court against the spoliating party. However, the door has not been closed on an independent tort of spoliation (more common in the U.S.), and some Canadian cases have been permitted to proceed to trial on that claim.
A party involved in litigation that does not have a document retention and destruction policy may be required to explain all instances where some documents exist and others do not. At trial or before, time and expense will be consumed arguing the issue of spoliation of evidence.
The scope and detail of any retention and destruction policy is a decision to be made based on a business’ specific needs and risk assessment. A basic document retention and destruction policy should include a schedule of disposal, categories of records and dates to be destroyed, documentation that the destruction was authorized and documentation that the destruction took place in accordance with the policy.
Once a policy is in place, it has to be enforced. Training and oversight are key to ensuring that employees comply with the policy and are often part of a larger corporate document creation and management policy. It is worth considering whether external consultants are needed to provide advice on technical as well as legal aspects of document management that may arise including risks associated with certain types of communications.
Some considerations for a document retention and destruction policy include:
•The retention period should clearly set out specific categories and types of documents and comply with all legislative requirements.
•The retention period should be fixed by a triggering event and a fixed time period (for instance, end of a project plus a certain number of years).
•The retention period schedule should set out categories based on the type of information, its location and its storage methods.
•Document storage during the retention period, and for documents to be permanently archived, should be delineated based on category of document.
•Destruction methods need to be complete (consider the complications of electronically stored information), secure and documented.
•The decision to destroy records should not be automatic – once records reach the end of their retention period they should be reviewed to confirm that they should be destroyed.
•The retention period and ultimate destruction should be able to be easily halted by way of a freeze should litigation become reasonably contemplated.
•There should be a means to ensure company-wide compliance with policy.
A clear and sensible document retention and destruction policy is a sound business practice that could save innumerable hours and considerable expense. •
Byron Yep is an associate at Hakemi & Ridgedale LLP and has appeared as counsel at all levels of court in British Columbia.