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Self and Hasty  
#1 Posted : 19 July 2021 13:04:46(UTC)
Rank: Forum user
Self and Hasty

Hi all,

A new client has in their contract that I must delete all documents of the company when the contract ends. I've always kept my site notes and audit/inspection reports in hard copy for five years as good practice to refer to if I'm ever called to give evidence.

Am I being too over the top by keeping records beyond a contract? Is it right that I should delete all my records of a client when I no longer work with them?

Advice/debate welcome.

Thanks

Roundtuit  
#2 Posted : 19 July 2021 13:20:32(UTC)
Rank: Super forum user
Roundtuit

Does your insurance cover legal costs for the client suing under breach of contract? As in many posts on these forums if the client is paying, and it is not illegal, the client gets.

Perhaps this question would have been more timely asked before you signed up to the contract - you could then have discussed how you like to work in relation to their data deletion request for example adding a minor caveat confirming that five years post contract termination the records would be destroyed.

Whilst appreciating these are records you have made, they are by virtue of the contract the clients property.

Roundtuit  
#3 Posted : 19 July 2021 13:20:32(UTC)
Rank: Super forum user
Roundtuit

Does your insurance cover legal costs for the client suing under breach of contract? As in many posts on these forums if the client is paying, and it is not illegal, the client gets.

Perhaps this question would have been more timely asked before you signed up to the contract - you could then have discussed how you like to work in relation to their data deletion request for example adding a minor caveat confirming that five years post contract termination the records would be destroyed.

Whilst appreciating these are records you have made, they are by virtue of the contract the clients property.

Self and Hasty  
#4 Posted : 19 July 2021 13:28:03(UTC)
Rank: Forum user
Self and Hasty

Originally Posted by: Roundtuit Go to Quoted Post

Does your insurance cover legal costs for the client suing under breach of contract? As in many posts on these forums if the client is paying, and it is not illegal, the client gets.

Perhaps this question would have been more timely asked before you signed up to the contract - you could then have discussed how you like to work in relation to their data deletion request for example adding a minor caveat confirming that five years post contract termination the records would be destroyed.

Whilst appreciating these are records you have made, they are by virtue of the contract the clients property.

My insurance has legal cover but I've never had to make a claim. I've been working for this client for two weeks and they only just asked me to sign a NDA and contract today.

I doubt it will ever come up with this client even if I carry on with my practice of retaining my notes. I just wanted clarification on whether your personal notes on an inspection that may be used in court could be deleted by contract law?

Which would take presidence in this case? I would have thought the evidence for court would supercede the contractual obligation, especially if the only purpose it is stored for is for court and details aren't shared anywhere etc.? There's no damage/risk to the company and only retained records to be used in a specific reason.

Roundtuit  
#5 Posted : 19 July 2021 13:53:32(UTC)
Rank: Super forum user
Roundtuit

Which is the stipulation contained within the contract or the non-disclosure agreement (NDA)?

A lot of businesses tend to fire off NDA's without due consideration of what they are hoping to achieve by using them. Normally they are to protect the development of intellectual property or sensitive commercial activity where a third party could gain advantage by becoming aware of the transferred information.

I am not aware of a current regulatory stipulation to keep notes for x years "just in case" of a court appearance so that is a failed argument. It may be best industry practice but that is as far as can be said.

Roundtuit  
#6 Posted : 19 July 2021 13:53:32(UTC)
Rank: Super forum user
Roundtuit

Which is the stipulation contained within the contract or the non-disclosure agreement (NDA)?

A lot of businesses tend to fire off NDA's without due consideration of what they are hoping to achieve by using them. Normally they are to protect the development of intellectual property or sensitive commercial activity where a third party could gain advantage by becoming aware of the transferred information.

I am not aware of a current regulatory stipulation to keep notes for x years "just in case" of a court appearance so that is a failed argument. It may be best industry practice but that is as far as can be said.

peter gotch  
#7 Posted : 19 July 2021 13:56:31(UTC)
Rank: Super forum user
peter gotch

Hi Self and Hasty

Have you signed the NDA and Contract? If not perhaps time to reconsider whether you want to continue working for the client even if it means losing 2 weeks of payments. Might be much cheaper than getting legal advice.

What do your insurers require, particularly as regards Professional Indemnity Insurance? If you comply with your client's demands you might find that your PII is null and void in the event of a claim. 

It is likely that much of what you write might be your intellectual property, but this is heavily dependent of the terms of appointment.

Self and Hasty  
#8 Posted : 19 July 2021 14:01:17(UTC)
Rank: Forum user
Self and Hasty

The specific clause on deleting all documents relating to the client is in the contract not in the NDA. The NDA is standard and doesn't cause any conflict with my practices, but the clause in the contract does. 

As I said I doubt it will even come up, this is only a month contract and I wont be using the information for anything nefarious so even if they did learn that I kept records then I wouldnt have done anything 'wrong' with them. This is just a paper exercise to help clarify for future where does an individuals good record keeping conflict with a company protecting its property?

If there's nothing legally stated in record retention timeframes for consultants then I guess the contract would take presidence, so in future when negotiating contracts is it worth stating that records will be kept? 

Roundtuit  
#9 Posted : 19 July 2021 14:10:43(UTC)
Rank: Super forum user
Roundtuit

Peter makes a pertinent point regarding consultant (rather than employee) intellectual property.

https://www.shoosmiths.co.uk/insights/articles/who-owns-what-when-it-comes-to-intellectual-property-12423

Last paragraph shows it is a case of "the terms of engagement".

thanks 2 users thanked Roundtuit for this useful post.
Self and Hasty on 19/07/2021(UTC), Self and Hasty on 19/07/2021(UTC)
Roundtuit  
#10 Posted : 19 July 2021 14:10:43(UTC)
Rank: Super forum user
Roundtuit

Peter makes a pertinent point regarding consultant (rather than employee) intellectual property.

https://www.shoosmiths.co.uk/insights/articles/who-owns-what-when-it-comes-to-intellectual-property-12423

Last paragraph shows it is a case of "the terms of engagement".

thanks 2 users thanked Roundtuit for this useful post.
Self and Hasty on 19/07/2021(UTC), Self and Hasty on 19/07/2021(UTC)
achrn  
#11 Posted : 19 July 2021 14:35:41(UTC)
Rank: Super forum user
achrn

Originally Posted by: Roundtuit Go to Quoted Post

I am not aware of a current regulatory stipulation to keep notes for x years "just in case" of a court appearance so that is a failed argument. It may be best industry practice but that is as far as can be said.

It may very well be required by your insurer - in a slighlt differnet (but similar) field ours requires we keep records, and where a client writes in a 'delete everything' clause to a contract we always propose an emendment tacking on something like "...save that the Consultant may retain one copy of the Confidential Information if required to do so by law, or for insurance or governance purposes".  Otherwise, the situation could arise where the client requires that you delete all the records, then brings a claim against you, and you have no records on which to base a defence to the claim.

If they've only just sprung the term on you, you are entitled to balk at it - though there's obviously a commercial decision to be made about how much you want to annoy the client. I would go back to them and propose an amendment to the term such as the above.

Interestingly, it's insurer that drives the requirement to keep all records, and it's when I'm acting for an insurer or lawyer that I'm most likely to be asked to sign up to delete all records, return all hard copies etc.

thanks 1 user thanked achrn for this useful post.
Self and Hasty on 19/07/2021(UTC)
Self and Hasty  
#12 Posted : 19 July 2021 15:34:28(UTC)
Rank: Forum user
Self and Hasty

Originally Posted by: achrn Go to Quoted Post
Originally Posted by: Roundtuit Go to Quoted Post

I am not aware of a current regulatory stipulation to keep notes for x years "just in case" of a court appearance so that is a failed argument. It may be best industry practice but that is as far as can be said.

It may very well be required by your insurer - in a slighlt differnet (but similar) field ours requires we keep records, and where a client writes in a 'delete everything' clause to a contract we always propose an emendment tacking on something like "...save that the Consultant may retain one copy of the Confidential Information if required to do so by law, or for insurance or governance purposes".  Otherwise, the situation could arise where the client requires that you delete all the records, then brings a claim against you, and you have no records on which to base a defence to the claim.

If they've only just sprung the term on you, you are entitled to balk at it - though there's obviously a commercial decision to be made about how much you want to annoy the client. I would go back to them and propose an amendment to the term such as the above.

Interestingly, it's insurer that drives the requirement to keep all records, and it's when I'm acting for an insurer or lawyer that I'm most likely to be asked to sign up to delete all records, return all hard copies etc.

Thanks, I think I'll just leave it for this client but for future contracts I'll approach it something like suggested here.

Thanks for your input all.

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