Tracy asked: " Have any of you been asked by client's inside counsel to change their file retention period? Instead of our normal seven or permanent retention, they're requesting we change theirs to three years. This client has over 3200 matters on the system with multiple attorneys working various practices, of which several are in our permanent retention category. Our firm requires all originals must be returned to the client at the close of the matter, so wouldn't the change in retention be on the client and not the firm? Your views/comments are appreciated."
Tracy: outside counsel guidelines and security audits are much fun, aren't they? In all seriousness, below are a few comments/questions that came to mind for me as I read your post.
How is the client defining the records in question? Are they asking that the file retention period be changed on their files/data so as to be consistent with changes in their own schedule? Or is the request more broadly made to also cover files/data generated as work product in the course of the representative engagement? I very rarely see the latter. If the former, I think you have already adopted a best practice to return the originals to the client at the close of the matter (assuming the matter closes promptly when the engagement has been completed). That said, any copies of the originals that remain would still fall under the scope of their request.
You mention that several matters are in your permanent retention category. How was that determined? Is it driven by legal or regulatory requirements? Business need? I've found that even those matters that require longer than typical retention (patent/trademark, aircraft leasing, estates and trusts for example), but do ultimately have a trigger to start a retention clock. Are attorneys wanting to retain the work product to re-use and leverage as precedent?
As a general practice, I don't think it's practical or operationally feasible to manage individual retention schedules for multiple clients and try to steer away from it in a manner that the client is comfortable with. This usually means an understanding and agreement of what is in scope (client provided records vs. work product) and the practice of returning or destroying client provided records at the end of the engagement (most often with the assurance that we will notify the client to give opportunity for them to give direction prior to taking action). If your engagement letter doesn't already do so, I would clearly define file ownership up front and what constitutes firm files vs. client files. If the client is asking for special treatment of work product as well, I would consider implementing a practice where any files agreed upon as belonging to them are also provided to them when the matter has concluded so that you aren't committing to adhering to a "one-off" schedule that is significantly different (and assuming any risk or responsibility of over retention and thus general non-compliance).
I realize that I've likely asked more questions than I've answered, but hope that at least some has been helpful. I'm happy to have a follow-up discussion if you'd like.
This is also a great opportunity to offer a public service announcement for a soon-to-be-released report created by the Law Firm Information Governance Symposium. One of four reports scheduled to be published this week speaks specifically to outside counsel guidelines and staying compliant with client conditions. More information about the Symposium can be found here - http://bit.ly/2bxVx4k. Links to the reports will be added as soon as they are available.
Thanks!
Leigh
Leigh Isaacs | Director, Records & Information Governance
T +1 202 626 6473 M +1 240 393 0853 E [log in to unmask]
White & Case LLP | 701 Thirteenth Street, NW | Washington, DC 20005-3807
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