If you put in place a retention period  based on a reasonable average, and if in a case being litigated that reasonable average does not comply with a legally required trigger event/retention period  combination (for example,  based upon reasonable assumptions, you have chosen a liquidated retention period 10 years, while in this case, the real, actual retention period  should have been 20 years because this is an outlier), it most certainly will not stand up in a court of law. The law mandated a particular retention period for this record and you didn't  meet it.  Legal retention requirements are almost always strict liability propositions. That means there aren't any excuses– the fact of noncompliance, regardless of the reason, makes you guilty.   and on top of that of course, someone will probably claim spoliation, etc., etc. 

Part of the risk and cost you assume with the reasonable-average–strategy is the possibility that in such a case you will get a spanking from the judge or jury.  The cost of the spanking and any other associated legal and regulatory fallout is a cost of doing business  using the the strategy. 

That is why you are well served to employ an additional strategy such as that outlined by Larry Medina to avoid as much of this risk as possible.

Best regards,

John
John Montaña 
Montaña & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
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www.montana-associates.com
twitter: @johncmontana

			

On Sep 7, 2011, at 6:40 PM, Dana Yanaway wrote:

> Has anyone put into place such a retention period based on an assumed
> average Knowing that there will be outliers?  Have you ever been
> called on it?
> 
> For those who haven't, do you think such a policy could stand up in a
> court of law as a reasonable attempt to address this issue?
> 
> 


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