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YCS&T Records Retention and Disposition Policy

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YCS&T Records Retention and Disposition Policy ...

    Handout - Session T18

    YOUNG CONAWAY STARGATT & TAYLOR, LLP

    Firm Records Retention and Disposition Policy

    Established: April 4, 2003

    Revised:

Introduction

Young Conaway Stargatt & Taylor, LLP (the Firm) has established a policy for the retention and

    disposition of records other than electronic data (the “Policy”). Those records (the “Records”) include

    Client Property as well as Firm Property (as defined below). YCS&T's Records Management Section

    (“Records Management”) shall administer this policy and shall provide the necessary training and technical

    assistance to all Firm personnel.

Attorneys and staff shall adhere to the policy as set forth below:

Policy

The Firm shall retain the Records for a period of time consistent with the schedule set forth herein unless:

    ? The client has submitted a written request to the Firm to return or dispose of the Records

    prior to the expiration of the Firm’s retention review time; or

    ? An order to dispose of the Records has been issued by a court.

It is the responsibility of the Firm prior to the disposition of any Records to ensure:

    ? There is no legal obligation to retain any of the Records;

    ? Disposition would not prejudice the interests of the client or the Firm; and

    ? To the extent practicable, either the Firm has offered to return the Records to the client or the

    client has given consent for the disposition of those Records that may be regarded as Client

    Property (as defined below).

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    Provisions

    A. Definitions:

1. Client Property

    ? Any Records that were obtained from the client;

    ? Any Records generated by the Firm but which, according to law,

    have become the client’s.

2. Firm Property

    ? Any Records created by or at the direction of the Firm in the process

    or support of the practice of law specific to a Matter (as defined

    below) which are not Client Property.

    ? Copies of Client Property.

    ? Materials relating to administration of the Firm and not specific to

    any Matter (as defined below).

3. Matter

    ? Whenever the Firm is engaged by a client for legal representation.

4. Records

    ? Hard copies of documents that are used or created for the

    representation of a client; and

    ? Photographs, audio and video media, and the like, but not including

    electronic records.

5. RBA

    ? Responsible Billing Attorney for the Matter.

6. Standard Record Retention Period

    ? The retention period as set forth in Exhibit A attached hereto.

    B. Disclosure To The Client Of Firm Retention And Disposition Policy

Appropriate language which notifies all clients of this Policy shall be inserted into

    the engagement letter or if no engagement letter has been created then a letter

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notifying the client of YCS&T's Records Management Policy must be created and

    sent to the client. It is the client’s responsibility to notify YCS&T of any changes in

    the client’s address.

    C. Notification of Client Regarding Retention/Disposition

The client’s consent for retention/disposition of Records for each Matter shall be

    requested by the RBA in writing.

The client shall be offered one of the following options for the retention/disposition

    of Records considered Client Property:

1. Return to the client (or client's outside counsel if YCS&T is acting as local

    counsel) of Client Property upon completion of the Matter;

2. Disposition by the Firm of Client Property upon completion of the Matter;

    or

3. The Firm will maintain the Client Property in accordance with the Standard

    Record Retention Period, at the expiration of which the Client Property

    shall be disposed of without any further notice to the client.

If the client cannot be located or if, in any event, the client does not select one of the

    foregoing options, the Firm, in coordination with the RBA, shall retain or dispose

    of the Records in accordance with this Policy.

     If the RBA has determined that the Client Property is outdated or, in the judgment

    of the RBA, is no longer of consequence to the interests of the Client, the RBA will

    dispose of the Client property in accordance with the approved retention schedule.

The RBA should inform the client in writing that during the course of the matter the

    client (and /or client's outside council if YCS&T is acting as local counsel) is

    responsible for retaining copies of Client Property and copies of client records.

    D. Closure of Matters

Upon closure of a Matter by the RBA, the RBA shall notify Records Management

    of the closure and a Closure Certificate (Exhibit B attached hereto) shall be

    generated and sent to the RBA. If the Closure Certificate is not returned by the

    RBA within 30 days of receipt, a reminder shall be sent to the RBA. If no response

    to the reminder is received after 30 days, the Standard Record Retention Period

    shall apply to the Records.

    E. Matters Involving Minors

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Whenever a minor is involved in a matter, the date for the retention period to start

    shall be the date the youngest minor involved attains the age of majority or the

    closing date of the matter, which ever is longer.

    F. Automatic Review of Matters

1. When any Matter has remained open longer than one (1) year with no

    billing activity, Records Management, upon notification by Accounting,

    shall send an inquiry to the RBA asking whether the Matter should be

    closed and, at a minimum, whether the Records should be moved to inactive

    storage. If the RBA does not respond to the inquiry within 30 days of

    receipt, the Matter shall be deemed closed, a Closure Certificate shall be

    generated and sent to the RBA, and the procedures set forth in paragraph D

    above, shall apply.

2. For a Matter where the attorney continues to provide ongoing advice to the

    client: the matter shall be reviewed periodically by the RBA, no less than

    annually, to determine whether any portion of it can be sent to inactive

    storage.

    G. Review of Records Prior to Disposition

Prior to disposition of any Records, Records Management shall notify the RBA of

    the Records subject to disposition. At that time, the RBA shall be provided a period

    of 30 days to indicate if he or she would like to review the Records prior to

    disposition. If review is requested, an additional 30 days shall be provided to the

    attorney to complete the review. If a request for review has not been received from

    the attorney at the end of that period, the Records shall be disposed as scheduled.

It is the responsibility of the RBA to inform Records Management when Records

    should be retained for a period of time greater than the prescribed retention period,

    the reason for the extension, and the additional period that the Records should be

    retained.

    H. Delaying the Disposition of Records.

The disposition of Records shall be postponed if:

A. The Records are subject to pending or reasonably anticipated litigation;

B. The disposition of the Records would prejudice the client’s interests; or

C. In the judgment of the RBA, it is prudent to retain the Records. The RBA

    shall inform Records Management when disposition is to be delayed, the

    reason for the delay, and the additional period that the Records should be

    retained.

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    I. 10 Year Provision

In the absence of a written retention agreement between the Firm and the client, it

    will be presumed that the client has consented to the disposition of the client's

    records, without further notice to the client, ten years after the conclusion of the

    matter. Special care will be taken to ensure any documents that have longer

    retention time than ten years will not be destroyed. This provision is in accordance

    with the proposed guidelines set forth by the Delaware State Bar Association dated:

    5/31/2002.

    J. Disposition Methodology

Disposition of Records may be accomplished by shredding, pulping, or any other

    method that destroys media beyond reconstruction in an environmentally sound

    manner.

The Firm shall take appropriate steps to protect against the disclosure of

    confidential information in the Matter while in the possession of the Firm and at the

    time of disposition.

    K. Release or Transfer of Records

Prior to release of Records to a departing attorney or to another firm, and subject to

    any applicable provisions of the Delaware Lawyers’ Rules of Professional

    Conduct:

1. The client must provide the Firm with written authorization for the release

    of the Records indicating to whom (name, address and phone number) the

    client is requesting delivery of Records;

2. The release of the Records must be approved by the Leader of the Section in

    which the Matter was pending;

3. The Section Leader, or designee, shall purge the Matter of all Records

    belonging to the Firm prior to the release of the Matter (e.g., billing,

    conflicts data, internal memos, any research, engagement info., etc.);

4. An index shall be created of the Matter contents being released prior to the

    release of the Matter; and

    5. A file containing the Letter of Engagement, conflicts search, client’s

    authorization, Section Leader’s approval of the release, and the index of the

    Matter contents released shall be forwarded to Records Management for

    permanent retention.

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L. Former YCS&T Attorneys

    If the RBA of the matter is no longer with the firm at the time of review, the RBA’s

    duties shall be assumed by the Section Leader or designee.

M. Records Permanently Maintained By FIRM

    The following firm records, for all client matters, shall be retained permanently by

    the Firm:

    1. Conflict search.

    2. Engagement letter.

    3. Real Estate Matters:

     a. Title Search

     b. Title Policy

     c. Settlement Sheet

     d. Ledger Card

    4. Closure Certificate.

    5. Client notification letter (together with envelope if undeliverable).

    6. Review requests.

    7. Where applicable, documentation that details the release of Matters to

    departing attorneys.

    8. Certificate of Destruction.

The Records Management database will be updated to indicate that the file has been

    disposed in accordance with this policy and to indicate the location of the permanent file.

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    Records Retention and Disposition Procedures

    Revised:

Introduction

This section will cover the steps necessary for the proper retention and disposition of Firm

    Records (as defined in the Firm’s Records Retention and Disposition Policy).

     A. Document Review

     Real Estate Section

    Matters with the law codes of 033, 038, 042, 053, 058 and 118 have the following

    documents placed in the permanent file:

    a. Title Search

     b. Title Policy

     c. Settlement Sheet

     d. Ledger Card

    Tax Section

    All Stripping of files will be performed by the RBA .

    Destruction Notices will be sent to All Attorneys involved in the matter.

    Matters with the law code of 114 will be reviewed to ensure that the original wills,

    trusts, powers of attorneys, health care directives, stock certificates, contracts,

    leases, agreements and notes not in the file that is being reviewed.

    Original wills and other valuable papers shall be kept, in a secured manner ( fire

    proof room), as permanent records.

B. Notification

    The notification letter described in paragraph C of the Policy shall be sent certified

    mail.

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C. Disposition of the Matter

    Subject to all review opportunities afforded to the RBA and the client pursuant to

    the Policy, the Matter shall be returned to the Firm’s off-site records storage vendor

    without the file which contains the Records to be permanently retained. The

    vendor shall be notified to destroy the box(s) containing the Matter. The vendor

    shall send the Firm a list reflecting the Records to be disposed. The Records

    Manager shall check the list for accuracy and, if appropriate, approve it. Upon

    approval, the vendor shall instruct its employees to pull the boxes and ship them to

    the shredding facility. When the destruction process is complete, the Firm will

    receive from the vendor a Certificate of Destruction. At that time, the database will

    be marked to the effect that the Matter has been destroyed.

D. Firm Property

    All Firm Property (as defined in the Policy) shall be subject to all applicable

    retention and disposition provisions of the Policy.

     E. Duplicates

    All copies, duplicates and extras will be removed from the files at the time of

    closure. If applicable all client property will be returned to the client at the time of

    closure. [Discovery documents may be destroyed or returned based on the opinion

    of the RBA as to whether or not they have value to the client.]

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    Client Files Retention Schedule

    Established:

    Updated:

    Law Code Description Retention Review Time

    Bankruptcy

    6 Years from Date of Final 001 Bankruptcy - General Decree Closing the Case

    6 Years from Date of Final 002 Bankruptcy - Debtor Decree Closing the Case

    6 Years from Date of Final 003 Bankruptcy - Creditor Decree Closing the Case

    6 Years from Date of Final 004 Bankruptcy - Trustee Decree Closing the Case

    6 Years from Date of Final 005 Bankruptcy - Insolvency Decree Closing the Case

    Domestic Relations

    5 Years after final Decree or if

    involving Children 5 Years after 016 Domestic Relations youngest Child reached age of

    Majority

    Business and Real Estate

    027 Banking Advice 10 Years

    028 Business Sale - Seller 5 Years

    029 Business Sale - Buyer 10 Years

    030 Collection/Debt Action - Debtor 6 Years

    031 Collection/Debt Action - Creditor 11 Years

    Commercial Real Estate 032 Transaction - Seller 6 Years

    Commercial Real Estate Strip after 11 Years, Keep 033 Transaction - Buyer Indefinitely

    034 Condemnation 6 Years

    035 Contract Dispute 5 Years

    036 Contract Preparation or Advice 5 Years

    037 Corporation Formation 5 Years after Liquidated

    Financing Transaction for 038 Borrower 10 Years

    039 Financing Transaction for Lender 10 Years

    040 Foreclosure - Borrower 4 Years

    041 Foreclosure - Lender 10 Years

    042 General Business Advice 11 Years

    043 General Real Estate Advice 11 Years

    044 Land Use Application 10 Years

    Landlord - Tenant Litigation - 045 Landlord 6 Years

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    Landlord - Tenant Litigation - 046 Tenant 6 Years 047 Lease Preperation - Landlord 15 Years 048 Lease Preperation - Tenant 15 Years 049 Opinion - Substantive 11 Years 050 Opinion - Transactional 11 Years 051 Partnership Formation or Advice 5 Years after Liquidated

    052 Regulatory Agency Matter 10 Years

    Residential Real Estate Sale - Strip after 11 Years, Keep 053 Buyer Indefinitely

    Residential Real Estate Sale - 054 Seller 5 Years 055 Securities Law Transaction 11 Years 056 Securitization Transaction 11 Years

    Property Tax and Assessment 057 Appeals 11 Years 058 Title Matter 11 Years 059 Utility Law 11 Years 060 Mechanic's Lein - Plaintiff 11 Years 061 Mechanic's Lein - Defendant 11 Years

    Environmental

    Insurance Defense - Strip after 5 Years, retain total 070 Enviornmental Coverage 11 Years

    Environmental Regulatory 071 Matters 11 Years 072 Environmental Litigation 6 Years 073 Environmental General Advice 11 Years

    Employment 080 Immigration Law - Advice 11 Years 081 Immigration law - Other 11 Years 084 Employment Advice - Employer 11 Years

    Employment Advice - 085 Employee/Union 11 Years

    Employment Litigation - Wrongful 086 Discharge 11 Years

    Employment Litigation - 087 Discrimination 11 Years

    Employment Litigation - 088 Restrictive Covenant 6 Years 089 Employment Litigation - Other 6 Years

    Employment Administrative - 090 Discrimination 11 Years

    Employment Administrative - 091 NLRB 11 Years

    Employment Administrative - 092 PERB 11 Years

    Employment Administrative - 093 Unemployment 6 Years

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