The Hard Sell in Ensuring Legal Compliance: Actionable Strategies for Selling Attorneys on the Importance of Document Retention

By Andrew Corridore posted 02-21-2025 15:36

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Please enjoy this blog post authored by Andrew Corridore, Associate Director of Information Governance, Foley Hoag LLP.

Convincing attorneys to embrace modern document retention and destruction policies has historically proven to be a tough sell. Lawyers are trained to anticipate worst-case scenarios and tend to resist parting with records out of fear that they may become relevant in future situations. As Information Governance (IG) practitioners, we tend to hear the same phrase repeatedly when trying to argue our side – “let’s hold onto them just in case.” Of course, this mentality, which has long been the norm in the legal industry, has led to the over-retention of data and to ballooning storage costs. However, in recent years, we have started to see attitudes shift with many attorneys now recognizing the benefits of a modern, well-implemented retention program. So – what changed?

To explore this evolution and attempt to convey actionable tips for turning the tide yourself, we spoke to several attorneys about their own perspectives on document retention and how they have changed over time. Spoiler alert – the overwhelming consensus is exactly what you would expect from a group of people whose job it is to avoid risk. The over-retention of data is just as risky – if not riskier – than defensible destruction. This shift in opinion did not happen for just one reason – rather, it was driven by a combination of practicality, financial pressures, and evolving regulations. Before we dig into these, we must understand what the beginning landscape was like.

The Initial Resistance: Fear of Letting Go

Attorneys have long been among the strongest opponents of document destruction policies. The legal industry operates and depends on precedent, and documents serve as a safeguard against the unknown. When posed with questions about why they opposed destruction policies, most attorneys responded with three main concerns:

Potential future litigation: Just because a document is irrelevant today, does not mean that it will continue to remain irrelevant down the line. Many attorneys prefer to err on the side of caution and keep everything rather than risk discarding something that might later prove useful.
Regulatory uncertainty: In areas of law with shifting requirements, some lawyers worried that destroying a client’s records may inadvertently violate their legal obligations.
Fear of sanctions: High-profile cases involving spoilation of evidence cemented the belief that it was safer to retain documents indefinitely rather than risk the fallout resulting from improper destruction.

This led to an environment where legal teams retained everything forever. In its infancy, IG was faced with skepticism and an uphill battle towards destruction. After all, what’s another box sent to offsite storage when it only costs us a few nickels? However, in the years to come, IG personnel would demonstrate that destruction, when done defensibly and in line with policy, was not only legally sound but even beneficial.

The Shift: Why Attorneys Are Changing Their Minds

So, what’s changed? Why have we seen an increasing number of lawyers amend their attitudes towards document retention?

The Burden of Discovery

Attorneys who have experienced the headache of responding to broad eDiscovery requests are often the first to recognize the downsides to over-retaining data. Keeping every email, every version of every document, every memo might have seemed prudent at the time, but when litigation arises, not only does this lead to increased liability, but also to increased discovery costs and prolonged legal proceedings. And let’s be honest, gigabytes of draft documents are not going to offer any advantage in litigation.

Cost Pressures and Storage Realities

From expensive offsite warehouses for paper records to ever-expanding digital storage needs, document retention carries with it a significant financial cost. These costs cannot be passed along to the client, nor do they necessarily improve the efficiency of your law firm or legal department. Take for example, the needle in a haystack metaphor – when searching for that one piece of information required to represent a client, sifting through volumes of “junk” serves only to slow you down.

Moreover, IT teams are seeing an increasingly central role in this shift. The reality is that, while storage is seemingly infinite in the digital age, it comes with a price – and that price continues to rise as more firms shift from on-premise environments to cloud services.

Evolving Case Law and Regulatory Expectations

Legal professionals have also adjusted their thinking in response to evolving case law. The courts have made clear that organizations are expected to have defensible retention policies and, unsurprisingly, to follow them consistently. Though better than operating without any formal policy, inconsistent retention can undermine an organization’s credibility in legal disputes.

In addition, regulatory agencies have emphasized the importance of controlled retention policies. Industries such as financial services, healthcare, and government contracting face strict mandates surrounding both retention and destruction, making IG programs essential rather than optional.

Privacy and Cybersecurity Risks

Data breaches and privacy concerns have had a large impact on the reception of modern data retention policies. Every unnecessary and over-retained document, be it an old employee record or a former client’s file, is a potential liability in the event of a data breach. In the past, the thought process was “the more data the better” – today it is: “Less data, Less exposure!”

Naturally, the rise of stringent privacy laws such as GDPR have highlighted the fact that unnecessary data retention can result in noncompliance and hefty fines. While not normally applicable to the day-to-day work, this increased awareness has helped push the narrative behind why retention policies exist.

The New Normal: Legal Professionals and Information Governance Aligned

While there are still some that hold to the archaic “retain everything” mentality of the past, many attorneys now recognize that modern retention policies, when properly executed, do not increase but instead mitigate risk. With this support, IG teams are being empowered to:

Develop defensible retention policies.
Ensure consistent enforcement and execution of retention and destruction projects.
Leverage technology to provide a holistic view of data and to automate retention.
Educate legal professionals on the benefits of a well-managed IG program.

Perhaps the strongest example of this evolution is the growing number of attorneys who support IG programs and advocate on their behalf. As one attorney somewhat jokingly put it, “I used to think destroying documents was risky. Turns out, it was my unchecked hoarding all along.”

Conclusion: Lessons Learned

For IG professionals still facing resistance within their organizations, use proven arguments to make the case for retention and disposition. Highlight the costs, risks, and regulatory expectations that make over-retention untenable. Share success stories from peer firms – especially if leadership is hesitant about these changes. As a rule, law firms love to be first to be second, so demonstrating that a program was successfully implemented at a competitor firm can be a powerful motivator.

Perhaps more importantly, frame the discussion not as a battle over destruction, but rather ensuring that what is retained aligns with business needs, client requirements, and regulatory obligations. The uphill battle is getting easier – attorneys are finally listening. The key is making sure that they hear the right message.

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