When developing a retention schedule and looking at the legal research that supports it, there are laws and regulations that set minimum periods that must be adhered to if an organization is to have a legally compliant records management program. These are called legal requirements. These are based on laws that specify firm or specific requirements for certain types of records. Think of these laws, as well, laws. You can’t break them, or there will be consequences.
On the flip side, a consideration is a subjective parameter, that does not specify the period of time to retain certain types of records, but are based on certain risk factors, such as litigation threats, government investigations, and other legal concerns associated with statutes of limitations, limitations of actions, and even record keeping best practices. The statute of limitations period only covers the period of time during which legal action may be brought, and once this time period has passed, no future legal action may be entertained. So we can consider these in a very loose sense as good sensible practices, that aren’t illegal if you don’t pay attention to it, but one ought to at least consider the benefits of abiding by them. We can think of these with the “don’t double dip at a party” example. You can double dip – it’s not illegal. But you risk putting fellow party-goers at risk of your germs, and it is frowned upon socially. So when examining your program, you should weigh how risky is it to keep records beyond their legally-required time frame. It might make sense in your industry for you to do so to protect your rights, but you also need to weigh the costs of managing these records beyond the legal requirement retention period.
We also need to ponder whether the records kept for the consideration period will be more helpful than harmful during litigation. Records can and have been effectively used by opposing party to bolster their cases in legal action. Other things to consider are that when corporate decisions are made to retain records longer than their mandated minimum, it could be due to more squishy factors, such as an on-going operational need, internal audit requirements, or even historical value to the company. But in every case in which retention periods are lengthened beyond their legal requirements, an internal determination should be made to identify the potential risks and expense to the company. Some organizations may choose to keep all their records for the longest limitation period assuming that a claim may be filed up until the final moment, but most companies probably expect that the vast majority of viable claims will be filed within a few years of the matter at hand.
Entertaining a reasonable consideration period is yet another strategy, and this is why contemplation of whether the limitation citations are appropriate in driving retention needs to fall to the experience and judgment of the Records Management Steering Committee and/or company legal counsel, who have a firm grasp and deep knowledge of the culture of legal action at the corporation. Yet another piece to the puzzle, is that some statutes have unlimited liability and legal action may be brought at any time. Limitations related to design or construction defects are an example of this, and the IRS can initiate legal action at any time if fraud is suspected. The period of liability under the statute of limitations will always depend on the activity at hand.
We certainly do not want records to be kept forever just in case of litigation, and many companies are indeed rethinking the consequences of keeping records too long. It is important to state that when litigation or government investigation is pending or imminent, records should not, and cannot be destroyed. But this aside, a thoughtful analysis of keeping records for the full statute of limitations period, some of which can be very lengthy, as opposed to the disposal of records as soon as legal requirements of met, should be weighed carefully. It is a balancing act, for sure. There are no easy answers here, or blanket solutions, and every company will come to their own subjective conclusions based on their risk factors and litigation strategy. It comes down to the advantages of destroying records as soon as they are able, and what is too soon, or what is long enough.