Jump to content

How many years of emails are you saving?


Recommended Posts

Certainly one side of the coin is to find that email and say "see I told you so".  But regardless I have heard from many many people that this is not such a great approach.  Also, theoretically, that "I told you so" email is saved in my workpapers, and those we do not get rid of.

Austin Powers, CPA, QPA, ERPA

Link to comment
Share on other sites

It would be great to get hear from the attorneys in the room, particularly those who have been involved in ERISA litigation. 

I have heard comments made at conferences on the topic of records retention.  The sense I have is TPAs are inclined to save everything and attorneys are inclined to endorse having a records retention policy and follow it closely.  I also get a the sense that TPAs literally keep everything including notes, draft copies, emails, regular mail, research, calculations, holiday greeting cards, and all data files both hard copy and electronic, whereas attorneys are inclined to endorse only saving what is needed to document the actual deliverables to the client.

Link to comment
Share on other sites

As an attorney, the iron-clad "attorney-client privilege" is full of holes as applied to employee benefits law. The reason is that the courts consider the attorney's client to be the participants and beneficiaries of the plan and not the employers retaining those attorneys. There are exceptions, of course, that I do not want to drag out and confound this forum with. That being said, the attorney's notes and communications to HR officers and top executives of the employer are generally not protected by privilege. Consequently, both the real client and the attorney are better served by not creating excessive notes that can be discovered by a disgruntled participant with an axe to grind. This fact argues strongly in favor of a document retention policy and strict adherence to it. That being said, however, plan documents, restatements, amendments, SPDs, participant communications and the like should most probably be retained forever (or pretty close to it).

Link to comment
Share on other sites

When I first saw the question I thought this was headed in the direction of cyber security and trying to limit the amount of sensitive information that is retained and possibly at risk that could have been deleted.    

Link to comment
Share on other sites

One related item of interest... one of the larger pre-approved plan providers has begun purging historical copies of plan documents from their system.  Essentially, they are keeping the current restatement cycle documents and the immediate prior restatement cycle documents, and purging the rest.  If you want to keep historical documents, then you have to print them or preferably have saved the original signed documents.

The rationale likely syncs up with an IRS agent supposedly not being allowed ask for more than the current and immediate prior documents.  On the other hand, I had an agent ask for every document since the original effective date of the plan.

Link to comment
Share on other sites

About records retention, there is no one uniform answer that’s right for every service provider.

Many possible approaches to records retention and records destruction turn not only on what public law might require but also on what a holder or processor of records seeks to accomplish or avoid.

Here’s a list of some questions I ask when I help design a TPA’s, recordkeeper’s, or similar service provider’s records-retention/destruction plan:

How often does it happen that a client’s question, worry, or request, or the service provider’s response, is in email and is not fully described in other writings?

Does the service provider want to be ready to save a client from the client’s failure to keep a record it ought to have kept?

How much value might old records have as knowledge management for how the service provider does its work?

Does the service provider or an affiliate sometimes offer services as a § 3(16) administrator? As a plan’s trustee? As an investment manager?

Does the service provider or an affiliate sometimes offer banking services? Insurance-agency services? Securities broker-dealer services? Investment-adviser services?

Has the service provider made any agreement with another service provider or a financial-services business? Read each of those agreements to find records-retention obligations.

What does the provider’s service agreement say about delivering or keeping records after either party ends the service?

Are some workers of the service provider arguably practicing law, accounting, or another profession, which might impose distinct records-retention duties? Or privacy and security duties?

Which U.S. States’ privacy or security laws might burden the service provider? Which European and other nations’ privacy or security laws might burden the service provider?

How strong or weak are the service provider’s systems in not receiving, or limiting the use and keeping, of records that could reveal sensitive personal information, especially a Social Security Number (or ITIN) or a date of birth?

Does any record about a client ever get used in evaluating an employee’s job performance? (Employment-related laws might impose a retention on a record so used.)

In which States are the clients located? Where are participants located?

Considering the clients’ States, what is a typical statute-of-limitations period for a breach-of-contract claim?

Considering those States, what are the potential statute-of-limitations periods for a third person’s negligence claim?

Considering the service provider’s usual forms of agreements, do they always, often, seldom, or never specify which State’s law governs the agreement?

How often is the chosen law the service provider’s preference? How often is it the client’s preference?

Considering the service provider’s usual forms of agreements, do they always, often, seldom, or never specify a time limit on claims against the service provider?

How often do clients face IRS, EBSA, and other document-production demands?

How often does the service provider itself face IRS, EBSA, and other document-production demands?

Does the service provider charge a client expenses, fees, or both for a document production?

If there are document productions for the IRS’s examination of a client or a client’s plan, will the client or the service provider seek the IRS’s reimbursement of document-production expenses?

Are the service provider’s records likely to include some for which a client might assert the client’s evidence-law privilege, including for lawyer-client communications or IRC § 7525 practitioner-taxpayer communications?

Are the service provider’s records likely to include some for which the service provider might assert its own evidence-law privilege, including for its lawyer-client communications?

How practically useful are the systems in sorting writings (including emails and mobile-device texts) to segregate or identify those for which a client or the service provider might assert an evidence-law privilege? If, for an IRS examination, EBSA investigation, or something else, a client or the service provider must furnish a privilege log, how efficiently could you assemble it? How much would have to be done by human intervention?

How easily could you prove you obeyed your records-destruction plan?

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

Link to comment
Share on other sites

There is no doubt that creating a records retention policy and conforming to the policy can be a major effort.  For small TPAs, the common approach seems to be to get a reasonable amount of E&O coverage from an insurance company with a reputation that they understand the business, fulfill the obligations in the contract for records retention and for notifying the insurer of possible claims, keep within the boundaries of personal professional knowledge, strive to do the best job for the client, and hope and pray not to have to swim with hungry sharks.

Link to comment
Share on other sites

  • 5 months later...
On 5/30/2023 at 2:07 PM, Paul I said:

It would be great to get hear from the attorneys in the room, particularly those who have been involved in ERISA litigation. 

I have heard comments made at conferences on the topic of records retention.  The sense I have is TPAs are inclined to save everything and attorneys are inclined to endorse having a records retention policy and follow it closely.  I also get a the sense that TPAs literally keep everything including notes, draft copies, emails, regular mail, research, calculations, holiday greeting cards, and all data files both hard copy and electronic, whereas attorneys are inclined to endorse only saving what is needed to document the actual deliverables to the client.

OH MY GOSH, it's like you know "me"!  I save any hand-written 'love letter' I get from clients, including but not limited to Christmas cards :)  This post made me laugh; glad it's not just I who am like this.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...