Kevin, many companies with which I have worked handle this as follows:

·        Case files are retained until final disposition of the matter (binding settlement or final judgement and appeal time passed) + X years (often six to ten years).

·        In some classes of litigation, case files are kept longer, or “permanently” (such as for IP or environmental litigation).

·        A small subset of the case file for general litigation may be kept “permanently,” comprised of settlement agreements/releases/covenants not to sue, or if the case goes to final adjudication, the order of dismissal plus sufficient pleadings, etc. for establishing issue and claim preclusion in future lawsuits.  These are roughly analogous to contracts that are never fully performed, in that a release or covenant is documentation of an obligation never to sue in the future.

·        Raw information preserved and collected for the litigation is generally not kept per the case file retention period above.  Instead, once the preservation duty is confirmed to have extinguished (generally at the final disposition of the matter), and after a cross-check to see if any of the preserved information is covered by other preservation duties currently in effect for other litigation matters, such information is released to ordinary course of business retention rules, which may result in disposal per the retention schedule.  Otherwise, the litigation version of the preserved/collected information would remain in the possession, custody, or control of the company, and would therefore unnecessarily be subject to future litigation preservation duties, even though the company has already made the good faith decision to only keep such information for its ordinary course of business retention periods, as applicable to its content.

Peter Sloan
Information Governance Group, LLC
o  816.366.8300
m 816.591.7810
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-        Not legal advice in this forum.