Page 6 - CCCA 243725 Magazine_Winter 2015

{ Risk ManaGeMent }

Working in tHe digitAl

Age oF disCoverY

By Lynne Yryku

Discovery has long been one of the most costly areas for But in my experience the worse situation
organizations when it comes to litigation, regulatory matters or you run into is fnding the documents
that help you,” explained Tighe. “Finding
audits. there is a staggering amount of information, especially with [those helpful documents] can be very,
the explosion of electronically stored information (ESI), ranging from very diffcult depending on how big the
mountain [of information] is.”
reports to emails and tweets. this reality has changed the face of To draft the policy, you need to know
traditional discovery, and in-house counsel need to be prepared. your business, and its legal and contractual
obligations. Consider how the company
is organized (corporation, trust, etc.) and
n April, the CCCA hosted a webinar all the jurisdictions in which it operates, as
on this topic: Record Retention, e-Dis- there will be specifc legislation and regula-
icovery, Spoliation: Issues for In-House tory instruments governing retention.
Counsel. Presented by Constance Crosby, Also take into account provincial and
Vice President of Legal Services at Cisco territorial statutes regarding limitation
Canada; Stephen Thiele, Partner at Gar- periods—but it may be prudent to add
diner Roberts; and Gavin Tighe, Partner a margin of safety to the legal limitation
at Gardiner Roberts, it provided in-house periods if there are issues that are poten-
counsel with some practical knowledge tially ongoing. Tighe gave the example
related to record retention and e-discov- of litigation around environmental con-
ery, and the potential consequences of tamination. If you are in Ontario, where
improperly destroying records. Here are the ultimate limitation period is 15 years,
some key takeaways. then you may have destroyed reports
showing you performed required testing
managing record retention if they were produced more than 15 years
Whether you are hit with litigation, a ago. While a judge may not draw an ad-
regulatory investigation or an audit, you verse inference about the destruction, the
need to be able to retrieve critical business reports would be very helpful. In short,
records in a time- and cost-effective man- you cannot necessarily create a one-size-
ner. The frst step is to get your records in fts-all-documents policy.
order now and set a policy for records re- Keep in mind that managing informa-
tention to keep the information you pos- tion requires participation from a number
sess manageable. of people in the organization, especially in
All companies, no matter what size, IT and at the executive level. To be effec-
need a record retention policy—and the tive, it must be written in plain language
purpose is not to save everything. Not de- and rigorously enforced from top man-
stroying documents once they are no lon- agement down. Explain the company’s IT
ger useful is the bigger problem. “Much of system and how employees store data on
the focus is on the document that is go- it, and address the consequences of a liti-
ing to hurt you that has been destroyed. gation hold.

6 CCCA MAgAzInE | WIntEr 2015 HIVEr