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Document Destruction (Legal) and Avoiding Litigation

Our client was proud of the fact that it had 25 years of paper files in boxes in its warehouse labeled by year and company department. More recent files were stored in the company's computer system. Some of the files documented matters the company inherited when it bought the land the factory was located on. This document history made the board of directors feel "in control," because they could look back at anything they wanted know. To The Food Lawyers®, it was a time bomb waiting to blow up in their face.

A document destruction policy is a written company policy defining when the company disposes of old information in the ordinary course of business. It is not a "one size fits all" proposition. Some documents, like routine e-mails, can be disposed of after 12 months or less while those of lasting importance are preserved for longer periods. Some items have to be preserved for periods defined by statute. For example, FDA regulations require that Food Facility Registration Records be preserved permanently, but the origin of ingredients and packing materials, and the destination of product shipments, can be discarded after 2 years.

So before you can discard anything, you need to look the nature of your business, how you retain records, and is legally allowed. When you learn you are going to be sued or investigated by government, you must stop the destruction until the case or investigation is concluded. If you don't follow the document destruction policy properly, you can be sanctioned for destruction of evidence. So the policy is a little like a skydiver's parachute: If it's working well, it's great. If it malfunctions, it produces a bad result.

We decided to implement an aggressive document destruction policy and dispose of things as soon as we could legally and safely do it. Then a couple of things happened.

Incident One: The attorney of a former employee contacted us claiming sexual harassment by a supervisor who was no longer with the company. This employee had been a low performing troublemaker who had quit. A key part of her case, according to her, was e-mail harassment from the married supervisor she claimed wanted to have a tryst. This was all news to us. We sent her attorney a copy of our document destruction policy showing that the e-mails she was interested in had been disposed of in the ordinary course of business about six months ago. A messy and potentially costly piece of litigation was avoided.

Incident Two: EPA contacted the company asking for records of its acquisition, handling, and disposal of certain chemicals for a time frame between 5 and 8 years earlier. There had been no chemical spills or other problems, but there was a real potential for technical record keeping and tracking violations that could have been enormously costly to the company. We sent EPA a copy of our document destruction policy showing that those documents had been disposed of in the ordinary course of business. The documents EPA needed to potentially skewer the client were available nowhere else. Case closed. The client and I stood in his office, looked at each other, and shook our heads about what might have been.

The moral of the story: Sometimes what you don't know can't hurt you. But if it's written down and held on to, it can come back and bite you.




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