Data Retention Policy: US Lawyers versus UK Lawyers

Many companies are struggling to figure out whether it's best to delete e-mail, and other potentially incriminating data as soon as possible, or whether it's better to keep it forever.

The "as soon as possible" camp argues that saved data is simply bad news. The more data you keep, the more likely that something incriminating -- or at least troublesome -- will be found during discovery for a legal case, and then you will wish that you had deleted it. If you are legally required to keep data for three years, then delete it after three years and one day.

The "keep it forever" camp argues that there are so many copies of data that it's almost impossible to delete them all. With e-mail, for instance, both the sender and receiver have a copy, maybe many receivers, and each of them may have saved it in lots of different folders, or even sent it on to additional people. And don't forget backups. The "keep it forever" people argue that any incriminating message is likely to be found eventually, and you are better off finding it yourself as soon as possible, so your opponent doesn't spring it on you at the end of the trial, where it looks like a smoking gun you were trying to hide.

We recently had a conference in Europe several of our top European customers, one of whom ran IT for a large law firm in the UK. He had an interesting perspective. In the US, he said, lawyers all want to delete their data as quickly as possible. They seem to assume that any data they keep is likely to incriminate them. In the UK the lawyers are the opposite. They all want to keep their data as long as possible. They seem to assume that any data they keep is likely to prove their innocence.

Never mind the motivation, my sense from talking with a variety of customers is that, at least for unstructured data like e-mail, people are increasingly leaning towards the "keep it forever" camp.