After whatever point the duty for preservation begins and records are
collected and possibly copied for  litigation, when the matter is considered
settled and the duty to preserve no longer exists, what do you do with
original records with copies of original records?

 

It might be easier to imagine and respond based on hardcopy records, but my
question would apply to any media on which records are maintained and could
be copied.  For my purposes in asking I'm scoping out the complication of
ESI and what part of it may or may not be a record outside the duty to
preserve. 

 

Do you 

 

1.       return the original records to their original custodian and apply
the retention period for the original record type to them while maintaining
copies made of the records with the litigation file and applying the
retention period for litigation.

 

2.       Same as number 1, but destroy copies made of records leaving the
litigation file itself without any evidence of records produced.

 

3.       Maintain all original records produced with the litigation file and
all original records and copies associated with the litigation file adopt
the retention period for litigation.

 

4.       Or something different.

 

Also, if you do return original records to their original custodian, keeping
copies of records produced or relevant to the litigation with the litigation
file, when you destroy the original records, assuming the retention period
of the original record types end sooner than the retention period for
litigation, do you make note on the destruction or elsewhere that certain
records within that record type may still exist within the litigation file?


 

I understand there can be attorney client privilege, but that may not apply
in every case.  I wondered what approach some of you may take to this issue.



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