Ginny and Tom were spot-on in their comments.

An organization cannot successfully defend the existence of multiple
retention schedules being applied to records with the exception of during a
transition period following a takeover or acquisition.  In those cases,
independent organizations may have each had retention schedules and they may
have been based on different criteria, such as where one organization
operated or who regulated them... but once the organizations combine and
operate under a consolidated model, consideration has to be given to
re-evaluating the criteria for the retention of records and the schedule
should be revised to meet the model that applies to the new organization.

There's no question that it takes time to assess the legacy records an
organization has when they determine the need to develop and implement a
records management program... and few organizations go back and 'touch'
every record or file when applying retention to legacy content.  Typically a
sampling of the content is performed, and a review of how it is
characterized- and unfortunately, its true that some organizations may just
stuff records into boxes and pitch them in a warehouse or send them to a
commercial record center. 

Generally what you find when you look into a 'compendium' of this type is
boxes are labeled as to the time frame the records relate to (1977-1980,
etc.), or the business aspect of the organization (finance, HR, etc.) and
inside the folders (if they exist) will have a further breakdown by subject
or chronology.  The worst case is when you find boxes labeled with an
individual's name (Tom White's office), but even in those cases, if you can
identify the role this individual played, you can get some idea of the
possible content and scope of the records.  

In these cases, the tactic is typically to do a 'gross level inventory'-
identify what you can easily and label it allowing you to categorize and act
on it and hold the balance for further review.  In many cases, the actions
are relatively simple. As an example, if your research has determined your
required retention for accounting or finance records is 6 years, and you
find records of these types that are more than 8 years old, they can be
discarded.  But whenever a 'bulk action' is taken, it should be documented
by a memo to file. Something along the lines of "November 2010: Review of
legacy records identified 25 cubic feet of finance records dated from
1990-2002 that were destroyed in the course of regular business" would suffice.

It's illogical to develop a records retention schedule by putting on
blinders and just determining the corpus of the current records being
created and received and thinking of managing content on a day forward basis
and ignoring legacy records.  If the legacy content exists, it's either an
asset or a liability- and in either case, it's part of the "information
balance sheet" of an organization.  A failure to address it properly will
likely result in that possible asset becoming a liability.  And if you are
expending effort or paying a direct cost to keep it, you should determine why.

Legal precedent?  In a discovery action, if an organization is required to
"produce all records related to" any given subject or staff member, and they
have thousands of cubic feet of records that they have no idea what they're
related to... how can they avoid having to search them to respond?  The
records may be damaging- but on the other hand, they may contain what's
necessary to defend the organization. 

I know that during audits of Federal Records, the Inspector General has
found cases where "selective application of retention schedules" to records
has resulted in findings being written requiring corrective actions be
taken.  Names withheld to protect the parties involved... 

I don't think there's anything in case law that addresses this directly, but
there's a LOT OF CASE LAW out there!!  However if you think about the
ENRON/Andersen case, there's an instance of legacy content that wasn't
properly managed during the course of normal business, and when the attorney
issued a memo suggesting to Managers that they ensure the existing policies
and retention schedules were applied to records in their control, it had a
bit of an impact.

Larry
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