In light of the dynamic changes over the past few months, an organization's document management policy and protocols are increasingly important.
Not only is it critical to consider privacy and confidentiality issues, but it is also essential that documents are preserved and centrally organized in order to mitigate risks that could arise should an organization face a dispute or become involved in litigation. As businesses are re-opening or adopting more permanent work from home arrangements or hybrids of working from home and the workplace, organizations should review their document management policies.
Disputes are not typically anticipated, and at the outset of projects or transactions, organizations are generally focused on getting the work done and not litigation strategy. However, should a claim arise, a good document management strategy can be pivotal in navigating through litigation. As a result, ensuring proper document management policies are put in place and adhered to is not only a good business practice, but it is also critical to risk mitigation should a dispute arise. The "paper trail", most often electronic, can be crucial in litigation, particularly where there is a dispute on the facts. Having important communications in writing is far superior than a general recollection of what transpired.
As more organizations shifted employees to work from home during the COVID-19 pandemic, more employees have been working outside of traditional filing protocols and documents may not be saved to central filing locations. In some cases, information may not be recorded at all which is a significant risk should litigation later arise.
As employees continue to work from home or begin returning to the office, organizations are well-served to ensure that documents related to projects, transactions, or important events are saved to central filing locations. This will ensure that critical documents that may be needed to advance or defend a claim are readily available and not lost or misplaced.
In particular, for organizations concerned with the risks of re-opening their businesses, it is key to maintain proper documentation to demonstrate that appropriate policies and steps were taken to comply with public health orders should a dispute later arise.
The COVID-19 pandemic has highlighted the importance of implementing sound litigation document management policies. Some best practices identified from our experience in managing document disclosure in complex disputes include the following:
- Ensure all relevant documents on a project, file, event or transaction are saved to a central location that is easily accessible and organized. In today's digital age, this will most often be electronic. Paper records can also be digitized, but originals should be saved in a secure location.
- Ensure employees are not saving relevant documents for a project, file, event or transaction to personal computers or personal filing system, and if they are, ensure that those records are regularly backed up to the central location. This is particularly important if employees are working remotely or outside of the organization's typical filing processes.
- Ensure hand-written notes or log books are scanned and saved or are otherwise preserved. Hand-written notes can be key to jogging memories about important meetings, presentations, and telephone discussions.
- If a dispute has arisen, ensure that relevant documents are not erased by organizational file management protocols - separate these records to a place where they will not be destroyed or erased. This is important as the destruction of records with knowledge of an anticipated claim can result in a court drawing negative inferences against an organization in the context of litigation.
- In any event, ensure that electronic and paper documents are preserved and available up to at least the expiry of the limitation period. The calculation of limitation periods can be difficult to determine, differ across jurisdictions, and are based on the facts of each case. It is advisable to seek legal advice on the length of time documents should be retained when creating a document retention policy.
Document disclosure can often become expensive and unwieldy but when relevant documents are properly managed and stored in a single location it has the potential for significant cost savings in litigation. A long hunt for relevant records in a dispute is time consuming, costly, and unnecessarily stressful, and can be streamlined and often avoided if proper document management processes are in place from the outset.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.