As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might act as a “sword,” allowing an opposing party to claim that the company’s preservation was not complete. Indeed, having a haphazard document retention program is probably worse than not having a retention program at all.
David W. Degnan,
The Expanding Duties of ESI and In-House Counsel: Providing Defensible Preservation and Production Efforts After Swofford v. Eslinger,
Rich. J.L. & Tech
Available at: https://scholarship.richmond.edu/jolt/vol16/iss4/2