Defensible disposition report

Introduction

Historically, records disposition initiatives have been a significant challenge for law firms to undertake. In fact, for many firms, retention policies have been drafted and even published for several years, yet their disposition programs are either just starting, have been discussed but not implemented, or are nonexistent. Traditionally, the resistance to disposition programs was largely due to the potential loss of client service that many attorneys assumed (and often incorrectly) would happen if information were not available for “just in case” situations – regardless of the vintage of the information itself.

In recent years, however, many firms have had to take a more active step forward to execute their retention programs. This step forward is triggered by growing physical and electronic storage costs, reduced office real estate, and in a growing number of cases, client requirements. Such programs require obtaining stakeholder support, procuring the necessary resources to conduct the program, and developing an overall realistic project plan. It also requires a firm to have a solid understanding of exactly what data has been maintained historically in paper records (work product and copies versus original documents), as well as how electronic records are being maintained within and outside a firm’s systems (replete with definable client/matter metadata and descriptions versus ad-hoc email folders and file shares).

Such information is not always easy to obtain; technology and correlating policies/procedures have changed, attorneys have retired or moved to new firms and clients have been acquired by other companies, or in some situations, have dissolved. Such challenges must be considered when understanding a firm’s overall risk tolerance to implementing a disposition program, and how much of a hindrance they present when trying to move ahead.

This report further elaborates on the above topics and proposes guidance on how to implement a defensible disposition program. It also takes in to account regulatory and client considerations, and provides examples of how firms are currently performing this task. Lastly, it looks at how to demonstrate ROI for a disposition program (including calculating the time such ROI is realized with the associated destruction costs), and address what future opportunities and technology may be available to assist firms in this process.

A few final notes before we get started. Disposition in the legal sense means the transfer or relinquishment of tangible property to another party. Our focus on disposition for this paper is when a record is destroyed -- or determined to be permanently retained. We also want to note that the change in names of the information/records function at law firms from Records Management to Information Governance is discussed in detail in other white papers and information management blogs, magazines, and books around the globe. In this paper, we refer to the function solely as Information Governance (IG) or the Information Governance Department, even though in many law firms the function and the people who perform the tasks are still known as the Records Management Department. Companion to that notion, and to reduce confusion, “records” and “data” is used to mean all information, emails, documents, materials, and other items that a law firm creates, captures, or collects.

Starting a disposition program

Gaining executive sponsorship

Demonstrating the need for a disposition program can be “easy” to do so long as the IG team fully accounts for the cost of unnecessary data storage. Costs for data storage – both electronic and physical – may falsely appear inexpensive when looking at it in its simplest, smallest form. However, calculating the total storage cost for data means addressing:

• The total amount of data eligible for disposition according to a firm’s retention policy,
• The associated storage costs for eligible data that has already been incurred by not effectively disposing of it,
• The projected annual storage costs for retaining that data as opposed to disposing it, and
• The associated labor costs with managing that data past its stated retention period.

Defensible disposition is a critical component to managing costs and risk and is a key element of law firm IG policies and procedures. In this report, you’ll find:

• Guidance on how to implement a defensible disposition program
• Examples of how firms are currently performing client considerations
• Ways to demonstrate ROI for a disposition program

Download the report today