Option 5 All of the above. Also keep in mind each one of us on this list have varied rules of engagement for this issue. 

	Depending on the case, possibility of, for lack of better wording, "copycat" litigation, in-house or outside counsel requirements. Retention expiration of originating source, etc. venue of litigation. Some states are rather persnickety about things.

	Normally, but not always, the original has passed required retention by the time litigation has been settled. If the capture is done properly, the original can be destroyed as the copies have been bate stamped, validated and approved as true copies. In other cases the original is still the only validated copy as there was never a call to discover and produce and case settled. The copies can be kept with litigation and originals returned to the proper disposition. After all, in theory, a release of a hold means the need to maintain this information is no longer necessary.  In the cases of electronic records ideally it would be good to capture the necessary information associated with the litigation in a searchable, structured data warehouse, leaving a "copy" to the owner to use for business, ideally this would also include regular retention requirements. However, experience has shown counsel isn't comfortable with this so you still have the issue of keeping both the produced and a "copy" on hold. Which then causes a business unit to create a new document (sigh discoverable) to continue business continuity. 

	Most counsel will not close a litigation or even lift the hold until the required appeals limitations are met. So in those cases keeping both the original and the copy is both expected and required by counsel. The down side to this is of course much of the held materials are still subject to discovery for other litigation and may end up on a new hold before the old hold is lifted. Main issue is to make sure external counsel has returned any/all documents both original and copy at case end. (though in my humble opinion) unless the court orders a sampling to validate the accuracy of documents, outside counsel should never handle originals anywhere outside of your organization. (trust me, experience says it is a bad idea). 

"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? - Tom Wilson " -- only at request of counsel. Since 99.9% of time counsel quotes A/C privilege. Current experience has shown though that in some litigation, in-house counsel right to A/C has been denied by the court.

The theory is the meet and confer with opposing counsel should help limit the need to maintain huge gathers of documents to be placed on hold, I haven't (personally) actually seen a case where this happens without direct intervention by the court. 


Donald J Mattson
Electronic Records Manager

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