Y2K: Y2K Compliance May Not be the Final Step - Industry Trend or Event

Edge: Work-Group Computing Report, Feb 15, 1999

Just because you're Y2K compliant doesn't mean the problem is over. It only means the end is near, says Jeffrey P. Aiken, a Milwaukee attorney who practices extensively in Y2K issues. The next challenge is what to do with the mountains of information your company has generated to become compliant.

"That information could be important to protect yourself in case of a lawsuit over damages resulting from Y2K computer problems," says Aiken, an attorney with the law firm of Whyte Hirschboeck Dudek SC. "If you're sued and your records are subpoenaed, you're going to have to produce that information in a timely manner. And the cost to gather and categorize information after the fact is almost always greater than doing so as the project proceeds." To avoid some of the anguish of an unforeseen lawsuit, Aiken suggests that companies develop Y2K-specific document retention and destruction programs. "Even if your company already has a general document program, it will need to create a Y2K-specific plan because of the unique characteristics of the project," he says. "Current technology renders most generic retention programs ineffective." Aiken says a company's document retention and destruction program should include such steps as eliminating inappropriate employee comments; creating and circulating an elimination form; retaining Year 2000 statements and readiness disclosures; and identifying privileged materials. "If companies act today as they go through the Y2K process, they will be prepared for what the year 2000 may bring," he says. The alternatives to organizing the information as your company's Y2K project proceeds aren't very attractive, Aiken points out. "You could rely on your opponent in a lawsuit to roam through your company's files and computer systems to assemble information, but most executives don't like this option, for obvious reasons." Aiken notes that if a company has a lawsuit pending, it is precluded from attempting to destroy the inevitable memo or e-mail message from an employee which usually is written out of frustration, but which exaggerates or mischaracterizes the company's Y2K efforts. "Unwarranted document destruction -- figuring no one will be able to prove what was in those documents -- carries severe legal consequences," he reminds. "The law presumes that information that was destroyed was adverse to your position. The jury could be instructed to assume that was the case or, under the right situation, the judge can decide the entire case against you." Whyte Hirshboeck Dudek SC has offices in Milwaukee, Madison, Manitowoc, Menomonee Falls, and Zurich, Switzerland.