Last week, I had the privilege of speaking at ACI’s 2nd Annual Consumer Products Regulation & Litigation Conference in Chicago.  During the conference, I moderated a panel of in-house attorneys that worked at General Electric, Williams-Sonoma, Deere & Co., and Nordstrom.  One of the issues that always comes up at conferences involving litigation is “e-discovery.”  For those of you that have not been involved in litigation lately, e-discovery has placed a significant financial burden on companies.  Basically, it means that if you are sued, it is likely that the other party will ask that you produce electronic documents during the discovery process.  It is not uncommon for manufacturers to have to hire outside vendors to search their e-mail archives for documents that might relate to the lawsuit.  This can cost tens of thousands of dollars.

What can you do?

The simplest way to minimize expense is to ensure that you have a document retention policy in place that establishes when certain documents will be destroyed in the ordinary course of business.  Once a lawsuit is filed (and possibly, before), there are obligations that are imposed that require that a company keep documents.  Therefore, the time to consider creating or updating your document retention policy is when the seas are calm.   We have worked with several manufacturers in updating their policies in the past year and understand that document retention policies need to take into account various certification standards (such as ISO) that might apply.  In addition, the retention policies for certain documents are set by state law so it is important to conduct a legal review on a periodic basis.