This week’s topic is even more serious than flood damage… so let me start with an exchange from the classic 1992 comedy “My Cousin Vinny”:
Mona Lisa Vito: Don’t you wanna know why Trotter gave you his files?
Vinny Gambini: I told you why already.
Mona Lisa Vito: He has to, by law, you’re entitled. It’s called disclosure, you *******! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he’s not allowed any surprises.
[Vinny has a blank look on his face]
Mona Lisa Vito: They didn’t teach you that in law school either?
“Discovery” is a topic that can be traced back to Old English Common Law. Each side in a lawsuit is required to provide pertinent information to the other. This concept has applied to paper records for centuries and now, due to decisions like Zubulake v. UBS Warburg (2003) the concept applies to electronic information and email as well. So here is the thing… files held past their records retention date are subject to discovery in the event of a lawsuit. Just because you could have destroyed a file before the lawsuit, once litigation becomes likely (even before it’s officially begun) you can’t shred them. Those boxes and old hard drives cannot be destroyed and must be produced if requested – generally regardless of the effort or expense required.
This reality has caused many of our clients to reconsider their records storage plan. Rather than keep everything virtually forever “in case we might need it”, many now realize that old records could be a potential liability in the hands of an aggressive Opposing Counsel. If you shred regularly as part of your formal Records Retention and Destruction Plan you are fine. But if you shred haphazardly (or not at all)… you could be at risk.