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LawBiz® TIPS – Week of January 16, 2019

Records Retention Can Help Prevent Penalties

Court sanctions will befall a lawyer who cannot preserve and produce relevant documents during the document search phase known as “discovery.”

An excellent way that any organization can be prepared for providing the huge number of documents that may be required in a litigation is by scanning those documents so they are searchable electronically in compliance with the federal rules of evidence. Since 2006, the Federal Rules of Civil Procedure (FRCP) require producing not just paper but also electronic documents and data for trial. Defendants and their counsel, therefore, must carry out this duty to preserve and provide electronically stored information (ESI) or face penalties from the court.

ESI can encompass a huge number of documents. One gigabyte of ESI can equal up to 75,000 hard copy pages, and the largest lawsuits may require production of up to one terabyte (1,000 gigabytes) of material, or 500 million pages of paper—approximately equal to the height of fifty-eight Empire State Buildings. This information must be produced quickly since the FRCP currently allows only a 120-day window after a lawsuit is filed to identify, analyze, and classify relevant documents.

Scanning documents into searchable PDF files in an ongoing records retention and management program is an excellent way to meet this requirement. Lawyers can then use a variety of software programs to search for key terms in electronic documents and classify those documents accordingly, enabling them to be produced and analyzed faster in the discovery process.

Being prepared by having all key documents scanned in keeping with the requirements of your records retention policy can be a major advantage in litigation and settlement and save hundreds of thousands of dollars in discovery costs.



Records Retention Can Help Prevent Penalties

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