Defensible Deletion: The Proof Is in the Planning

Most companies maintain vast amounts of unneeded data and can decrease legal and compliance risk and minimize financial burden if they retain less ROT (redundant, obsolete and trivial data). Unfortunately, eliminating ROT, often referred to as "defensible deletion," can seem challenging. Here, we provide a framework for making defensible deletion an attainable goal. The key lies in planning.

What Is Defensible Deletion?

Prospectively, defensible deletion involves the ongoing and routine elimination of unneeded data, in real time or pursuant to a prescribed schedule to avoid accumulation of ROT. Retroactively, defensible deletion involves identification and deletion of previously accumulated ROT. In either case, the "defensible" part of the proposition involves minimizing legal risk, particularly associated with spoliation of evidence.

Deletion Can Be … Defensible

The first challenge most legal departments face is the question of whether any data can safely be deleted. The short answer is, "yes." Companies are entitled to dispose of information they no longer need, so long as they do not violate regulatory requirements or litigation preservation obligations. As validated by the U.S. Supreme Court, "'Document retention policies,' which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. It is, of course, not wrongful for a manager to instruct employees to comply with a valid document retention policy under ordinary circumstances." Arthur Andersen v. United States, 544 U.S. 696, 704 (2005).