Records Retention: The Foundation of a Manageable E-Discovery Process

April 2, 2011
Michael A. Carter
Association of Corporate Counsel's "Green-house Counsel"

It goes without saying that the volume and types of electronically stored information ("ESI") held by companies has increased dramatically over the past decade. It is also axiomatic that a party's obligation to produce documents, including ESI, in litigation generally includes all responsive documents within its "possession, custody or control." The confluence of seemingly ever-increasing amounts of ESI with the liberal discovery standards prevalent across federal and state courts in this country create the potential for overwhelming ESI productions. Corporate counsel, therefore, must carefully consider the universe of documents retained by their organization in the ordinary course of business to proactively manage the scope and cost of potential discovery in the future (once litigation has begun or is reasonably anticipated, of course, an organization's retention obligations may be heightened).

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