A Lawyer's Perspective on Records Retention And Destruction

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  • 1. A Lawyer’s Perspective on Records Retention and Destruction Dan Michaluk May 28, 2009
  • 2. Records Retention
    • Holistic look at the law that underlies a retention rule
      • Statutory minimums
      • Statutory maximums
      • Discretion and reasonableness
      • Litigation holds
  • 3. Records Retention
    • Statutory minima
      • Tend to be strict
      • Purpose 1 – support the enforcement of regulation
      • Purpose 2 – value to public itself
      • Featured in privacy legislation (even PIPEDA)
      • Tied to numerous bodies of regulation
  • 4. Records Retention
    • Statutory maximums
      • Shorter history than minimums
      • Not as common
      • More flexible than minimums
      • No uniformity in commercial sector statutes
  • 5. Records Retention
    • Statutory maximums
      • PIPEDA – keep it ‘till the initial purpose is spent
      • BC PIPA – and until you have no legitimate reason
      • Alberta PIPA – withdrawal of consent does not affect the right to retain
      • Quebec PIA – no use without consent once object is obtained
  • 6. Records Retention
    • Statutory maximums – not much case law
      • PIPEDA #157 and 326
      • PIPEDA #309
      • BC - KT Gostlin Enterprises Limited
  • 7. Records Retention
    • Statutory maximums – bona fide purpose?
      • University or college health clinic
      • Retention for 15 years from… (CPSO Guideline)
      • Can we keep for longer since they might be relevant to sexual assault claims against our employees or agents?
  • 8. Records Retention
    • Discretion – Records and information as evidence
      • Generally looking at the most likely claims
      • Assessing potential relevance of business records is hard (aim for meeting the 80/20 rule)
      • It’s okay to rely on a retention period in getting rid of transitory or “not helpful” records
  • 9. Records Retention
    • Discretion – Records and information as evidence
      • How closely will a court scrutinize a retention rule?
      • Is there a positive duty at common law to retain “litigation-related” records absent pending litigation?
      • See Lewy v. Remington
      • Compare Broccoli v. Echostar
  • 10. Records Retention
    • Litigation holds
      • Spoliation means failing to preserve records likely to be relevant to reasonably anticipated litigation
      • Intentional destruction is bad
      • Negligent destruction is bad too, but sanctions may depend on the resulting prejudice
  • 11. Records Destruction
    • The legal requirement in data protection legislation
      • Reasonable safeguards standard
      • Plus technology neutral data destruction rule that sounds absolute but has hidden ambiguity
  • 12. Records Destruction
    • Three components to the challenge
      • What are the proper means?
      • Are the proper means accessible?
      • Have reasonable steps been taken to ensure people utilize the proper means?
  • 13. Records Destruction
    • Leading authority
      • BC OIPC – F06-01
      • BC OIPC – F06-02
      • IPC/Ontario – Order HO-001
      • IPC/Ontario – Fact Sheet #10
      • IPC/Ontario – PC 07-41
  • 14. Records Destruction
    • Proper means for paper
      • Locked bins for holding paper
      • Cross-cut shredding or better
      • A certified agent or one who’s “willing to commit”
      • A proper “agent’s” contract
      • Certificate of disposal
  • 15. Records Destruction
    • Proper means for electronics
    • Methods
      • No – Delete or reformat
      • No – Encryption (if you keep the private key)
      • Yes – Physical destruction
      • Yes – Overwriting
    • Get a periodic expert opinion on your process if doing in-house
  • 16.
    • Dan Michaluk
    • [email_address]
    • (416) 864-7253
    • http://danmichaluk.wordpress.com
    • http://twitter.com/danmichaluk
  • 17. A Lawyer’s Perspective on Records Retention and Destruction Dan Michaluk May 28, 2009