Document Retention Creates Legal Problems.

• Position: Brief Article

Anything and everything that is written by employees can someday be used as evidence in a lawsuit, cautions Jeffry W. Smith, an intellectual property attorney with the law firm of Lathrop and Clark, Madison, Wis. "All too often, lawsuits are influenced by carelessly written memoranda or e-mail messages that are purported to be a reflection of a malevolent corporate agenda. It is essential that employees avoid careless and excessive document generation. Document retention policies, which outline a procedure for retaining and disposing of corporate documents, are the key."

For example, hanging on to drafts and outlines of documents and handwritten notes about the history of an important document is not only a waste of file space, but a windfall of information to opposing counsel in litigation. "A marked-up draft of a document should be kept only so long as it is needed to compare with the next draft," Smith emphasizes. "Afterward, it should be discarded."

In addition, research and development departments should refrain from amassing huge, but unread, stockpiles of third-party technical information, such as scientific journals. If the research and development team invents a product and ultimately seeks a patent, they are required to disclose any material information that could affect the patent-ability of the invention. That may include the information stockpiled in the file cabinet, even if it has never been read. If the stockpiled information is material, but not discovered until later, the patent...