Keeping business records is not only critical for any business operation, but it is also a legal requirement when it comes to certain categories of records. Records pertaining to taxation, personnel matters, business registration, court decisions settlements, summons, meeting minutes, etc are by law expected to be maintained by businesses of whatever nature.
The early days of any business are quite unstructured, especially to those businesses that could be struggling to establish themselves. Even though the business activities may not be many, there could be an evident lack of structured record-keeping practices. Some businesses tend to keep everything and yet others tend to destroy too early. Whichever way, this is an issue of Information Governance.
As the organization grows, so do our interactions with other existing businesses, personalities, government, etc. Some of the issues handled may end up in court leading to the latter ordering the business to produce records pertaining to the issue in court. Some legal representatives may demand more than just that leading to the court to compel the organization to produce all the records, some stretching back to its early years. Failure to produce the records may be met with dire legal consequences.
The expectations are that the organization has always maintained records in their completeness ( a critical feature in the admissibility of the records), and accuracy and that their officialdom is not lost (signed original as well as authenticated copies). Failure to meet this first test may cast doubts on the organization’s side of the argument in this case in question. Furthermore, the court may also order an information audit of all the records of the organization- which would in this case include electronic as well as paper records. If it is established that gaps exist, then it is very possible for the court to order the charging of the company executives. This happens mostly when the case in question is high of public interest and it is perceived that the organization may have destroyed records relevant to the case. This is known as Spoliation. In other words: it is the destruction of legal evidence that could have been used in a lawsuit.
While case law clearly requires legal holds when litigation is reasonably anticipated, courts have begun to reach further back into parties’ histories to examine what the parties did with the information at issue even before legal hold obligations arose.
Most courts have stopped short of censuring parties for past sins not presently before the court; nonetheless, all courts are beginning to consider these behaviors when examining difficult, present-day facts that are ripe for determination.
Here in Kenya, and across most world countries spoliation happens every now and then. it is, however, crucial to know that the consequences may be dire in certain circumstances as depicted in the following case:
