Legal effect of destroying records

There are different reasons why organisations destroy records.  Every time you do so, does not necessarily mean that you are breaking the law. The reasons include the following:

1. Routine records destruction programs.
2. Manual cleaning of the files: Many companies “clean up” their e-mail periodically by asking employees to clean out their inboxes and having administrators remove archives.  Often, this action is driven by a concern that old e-mail represents a lingering liability in the event of litigation. While this clean up action may be prudent, deleting e-mail in this way raises concerns especially if (i) the e-mail is not deleted in terms of a document retention and destruction policy or (ii) the company is in the process of litigation.
3. Auto-deletion:  Typically auto-deletion of e-mail is by necessity based on non-content based criteria such as message size or age.  Neither of these criteria will in all likelihood survive a court challenge, as the statutory record retention requirements are based on the relevance of the content of the record.  Usually the only way to determine this is by manual inspection of the content.
4. Intentional record destruction:  In order to prevent the other party from using the evidence against you.
5. Inadvertent destruction of a record / acts of omission:  I.e. doing nothing to prevent the destruction of e-mail.  This can happen for example where one fails to stop back-up tape rotation, reformatting the laptop of a former employee for a new employee and deleting old e-mail.

there is also no such thing as “perfect records retention“

By virtue of the above, it is clear that there is also no such thing as “perfect records retention“.

So what then are the legal effects of destroying records?

There is a difference between destroying a record that the law says you must retain and one which you destroy in the ordinary course of business.

Records the law says you must retain

There are several other consequences of destroying a record the law says you must retain:

• You will be penalised if there is a penalty for destroying that document;
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  Tags: destroying records, record destruction, scanning