Quality Not Quantity

The adage that "quality, not quantity matters" certainly applies to the maintenance of business records. Businesses often devote numerous hours to developing lengthy schedules defining what records must be kept and for how long. While the development of a comprehensive schedule is important, the quality of the records to be maintained is just as important. Records must be of a sufficient quality to allow companies to defend against legal claims.

One important quality consideration is how to store the records. Records should be stored so that records can be easily located when necessary to respond to a discovery request. Failure to do so can result in burdensome costs.

In In re Brand Name Prescription Drugs Antitrust Litg., 1995 WL 360526 (N.D. Ill. 1995), an Illinois district court required a defendant corporation to sort through volumes of stored email at its own expense. Pursuant to the plaintiff's discovery request, the records had to be formatted before the plaintiff could search and retrieve the email records. The court held that the defendant should bear the discovery cost of $50,000 to $70,000. Reasoning that the translation of data into a useable form by the discovering party is a foreseeable burden because electronic records should be available with the same openness as traditional forms.

As in this case, companies face increasing requests to produce electronic records. However, the take away is that ineffective storage can be risky and costly for both traditional records and electronic records. Therefore, retention programs should consider the quality of records to minimize risk and high costs associated with discovery.

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