In the wake of all the corporate misdeeds of the early 2000’s, a lot of corporate attention is now focused on data retention policies. New eDiscovery guidelines for Electronically Stored Information (ESI), Sarbanes-Oxley requirements, and HIPPA have companies of all sizes scrambling to put in place rules that govern how long data is kept around.

Data retention policies define how long data must be stored. The philosophy is that data should be deleted in its entirety as soon as it is no longer needed for either a business or regulatory purpose. Let’s be honest, “data retention” really means “data destruction”. The real goal of these policies is to avoid future legal problems by getting rid of data on a schedule . Companies want to do this as soon as they are no longer legally responsible for the data.

Given that data lifecycles vary a lot, most retention policies are based on classes of data. Classes group like types of data together. You can then assign each class its own retention policy. Each policy must account for a number of factors, especially the lifespan of data. One class of data (for example check images) may have a retention policy of years. For another, it might only be weeks. My shopping list has a lifespan of only about two hours.

Intellectual property, as a class, has a very long lifespan. At any point in time, there may be a need to produce prior art. This is true long after a copyright, patent, or trademark is no longer in force. For trade secrets, the lifespan of the data may be the lifespan of the business. A great example of long-lived intellectual property is the formula for Coke. It has been kept a trade secret for over 100 years.

Unfortunately, practically all corporate information can contain important intellectual property. That PowerPoint presentation used for internal sales training might contain your new secret sauce. How about that ancient product design? Absolutely. It’s full of prior art, some of which might still be found in your current products. Even the agenda for last week’s engineering meeting might contain valuable information that, in the future, may help provide the central idea for a new product line. None of this can be thrown away automatically.

This presents an obvious disconnect between many data retention policies and intellectual property needs. To resolve this situation it's important to keep at least one copy of anything that might have intellectual property in it. It is also important to have a process in place to review potential intellectual property.  No matter how you do it, wholesale deletion of data without review will inevitably result in the destruction of valuable intellectual property.

At the end of the day, it’s important to remember that nearly infinite lifespan of intellectual property means nearly infinite retention. Otherwise, you may not be able to back up a claim or  will inadvertently reveal a trade secret.  You might also find yourself without that great idea that has suddenly become really important.

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