Court Document Retention

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In the interest of full disclosure, let me say, up front, that I believe both ends of the Court Document Retention discussion will be laid to rest and ultimately forgotten over the next five to 10 years, if not sooner. By “both ends” I mean, first, the question of “In what medium (paper, microfiche, or digital) should court records keep particular documents?” and second, “What to do with court documents (regardless of medium) once the retention period expires?”

My reasoning is that societal and governmental trends vis-a-vis public records (and I think, particularly, court records), are rapidly and inexorably moving toward requiring perpetual retention of all documents, particularly as storage costs continue to shrink.

Notwithstanding my (admittedly rosy) prediction though, that is not the world courts live in today. Consequently, there is a lot of effort being expended to remove the paper/michrofiche requirement barrier. As previously discussed, that can’t happen too soon .

Beyond the anachronistic medium requirement, under current laws and policies, courts are going to have to continue to manage which documents to keep and for how long. And rarely considered, but extremely costly, is the flip side of document retention: document purging and disposal once the retention period expires.

Every court knows the pain, expense and conflict involved in purging documents. With paper documents, even the best systems are highly labor-intensive, and usually involve multiple checks, verifications and quality controls to assure that nothing is inadvertently purged that should be kept. First, there is the management to keep track of when files and documents should be purged. It’s not as simple as a one-time calendaring at the case’s conclusion: What if something else happens in the case later to extend the time?

Once identified, in some instances, some documents must be physically removed from the case file while others are left in. In others (if not all for some case types), someone must go through the entire physical file to make sure there is not some “keeper” filed inside by mistake.

Then there’s the question of what to do with all that paper. (By the way, microfiche, being also physical, has corresponding problems). You can’t just toss it in the recycle bin — there are confidentiality considerations. If you outsource (a common solution), the service provider usually has to be bonded, provide security assurances, etc. And, ahem, they charge…

A dirty little secret among many courts is that they don’t actually purge until they have run out of storage space, because the cost of storage space, while not insignificant, is a lot less that the cost of purging in a legally and procedurally acceptable manner.

Given these factors, consider this: Every paper document a court receives or keeps — even if the court does absolutely nothing with it — is creating a downstream expense. Think you’ll move to an Enterprise Content Management (ECM) system and then just go digital “Day Forward”, leaving as many old, sleeping paper dogs (I mean documents) to lie? You might want to take into account what those documents are going to cost to get rid of.

One of the major benefits of ECM, and one that I think gets far too little credit in up-front financial business case development, is that it massively cuts the cost of compliance with the current requirements for document purging and destruction. From the time of receipt or creation, the document can be managed for retention, and ultimately, purging. If the policies change, no problem; the workflow process will be changed and the document correctly managed under the new rules. When the time comes to purge, varying levels of review can be selected and administered. Destruction itself can be securely accomplished, monitored, documented and later audited.

While courts are permitted/required to purge and destroy old documents (and no one but me is predicting that won’t be forever), that fact in itself provides huge, if not independently sufficient, incentive to move as expeditiously as possible to ECM.

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