Although I have more admiration and respect for Lee than could be expressed here, I have to disagree on one point.  

I think that a law firm, or any entity, which has records that are 40,50, even a hundred years old, and you big firms out there know who you are, can make a defense that it is unreasonable to spend significant time and expense to try to locate an entity or a successor, if any, for records that are that old.  That a reasonable assessment of those records, if it concludes that there is little or no continuing value, can be a basis for a destruction project seeking to reduce current storage costs. 

Here is an example.  Assume you have a matter index of files created for the matter. The firm has represented railroads in the past or their insurers.  A matter, opened in 1963, concerns an insured freight car loaded with fruit that is side tracked in the Summer heat. All of the fruit spoils. The matter is settled.  You have dozens of matters just like this one, from the 1920's to the 1970's.  A cursory search concludes a successor client entity, if any, is uncertain. Can you make a legal assessment that the records have little or no continuing value? I would say yes.

I'm saying this, not only because Donald Skupsky discusses this in his books on retention, but also because the legal out is always what is reasonable. Of course this is predicated on whatever the risk comfort level is at the firm, which will obviously vary.

My opinions are my own.  I follow my current employers retention schedule, the risk management comfort level of the firm, and the guidance of our Risk Management Counsel.

Bill Creamer
Records & Conflicts Manager


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