Compounding the problem, because the records exist, an
organization is legally obligated to find and produce anything
applicable to the intentionally broad scope of the opposition’s
request. If there are twenty years of records, it is going to take
considerably more resources to search than if they were limited
only those records from the last five or six years.
The Risk of Adverse Inference
Disposing of records irregularly or sporadically, as is the case
when they are retained for an extended period after their required
retention period, runs the risk of being interpreted as deceptive.
Erratic or random disposal of retained records follows no discernible
pattern. Therefore, were a lawsuit, criminal prosecution, or audit
to arise afterward, even a year or more later, suspicion could also
arise that their disposition was motivated by the anticipated suit
or audit to hide incriminating evidence. This is especially true if the
opposition’s interests are served by making such a claim, which is
likely in the event of a criminal proceeding or lawsuit.
Judges will make a ruling of “adverse inference” if the suspicion
is strong enough, which means they assume the suspiciously
destroyed records would have incriminated the organization. In
a jury trial, the judge will instruct the jurors to draw that same
inference. If the judge or jury is legally required to assume the
destroyed records would be incriminating, it will obviously be
difficult for the defendant to prevail.
Increasing Risk of Unauthorized Access
Of course, the longer records are unnecessarily retained, the
more information there is to protect from unauthorized access.
No organization can predict what records might be used and how
they could be used to cause harm and liability issues. It is easy to
see how retaining decades of employment records increases the
difficulty of protecting them from unauthorized access. On the
other hand, there is no way of knowing how purchasing or hiring
practices documented in older records might be interpreted (or
misinterpreted) to the detriment of the organization.
The 1st Complete
Guide for the Secure
Information Disposition contains everything one needs to know,
including policies and templates, to create a state-of-the-art,
compliant and secure information destruction program. This
book also serves as the official study guide for the Certified
Secure Destruction Specialist® (CSDS) Accreditation Program.
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