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{ Risk ManaGeMent }

Once the record retention policy is undertaking e-discovery ■ Collect all relevant record retention, back-
drafted, the next step is implementation. ESI is present in virtually every case, so it up, archiving and destruction policies.
You need to show the policy is in use to is increasingly important that in-house ■ Get IT to describe all automated docu-
protect yourself. For instance, if there is counsel have at least a basic understand- mentation management systems.
a lawsuit and the other side requests 10 ing of e-discovery. The Sedona Canada ■ Advise all relevant staff to cease or
years of records, if those documents were Principles Addressing Electronic Discovery suspend destruction or modifcation
deleted according to your record reten- provide 12 general principles to guide you activities.
tion policy, this would be a suitable de- through the process. ■ Engage an outside forensic expert to
fence for why you cannot produce them. Every document—electronic or hard preserve the data properly, without
However, if your company destroyed copy—relevant to any matter or issue disrupting business.
those documents without a policy, it may that is or has been in your possession, ■ Cease or suspend overwriting backup
raise suspicions. control or power is discoverable. As Tighe tapes and activities that would nor-
In addition, as Crosby pointed out, explained, if you can get the documents, mally result in destruction of relevant
“Data is costly, whether it is in your server or you can tell somebody to get them, you documents in the ordinary course of
or housed.” Although implementing the must produce them. business.
record retention policy requires a signif- When does the red fag go up? Certain- Finally, allegations of spoliation—the
cant budget, it is necessary and will save ly, you must issue the litigation hold when destruction or alteration of relevant evi-
money in the long term. your company is retained in a lawsuit. dence—is a signifcant issue for ESI. The
However, given that you have a limited best defence against such allegations? A
time frame to amass and digest an enor- clearly written record retention policy
mous amount of information, all three that was in effect before litigation was rea-
panelists agreed that a better standard is sonably suspected. ❚
to issue the litigation hold “as soon as liti-
gation is reasonably suspected,” as per the
Sedona Canada Principles. Lynne Yryku is the Managing Editor of CCCA
Magazine.
Thiele then reviewed a brief checklist
for in-house counsel when litigation is
reasonably anticipated:

“ Once the record retention policy is drafed, 7

CAnADIAn COrPOrAtE COUnSEL ASSOCIAtIOn | CCCA-ACCjE.Org ”
the next step is implementation. You need to
show the policy is in use to protect yourself.