On Sat, 4 Aug 2001, Aimee Farr wrote:
Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means "shred away!" Bzzt. Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order. Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint, you are probably not going to meet the good faith requirement.
You fail to see the distinction. Lewy speaks to SPECIFIC documents, not a general business process. One can have a general business process of shredding all documents, unless you believe they will be needed at some future time. That is a SUBJECTIVE call. It's that 'intent' in the cites that were so graciously provided. If you destroy all your documents (eg IBM puts a 90 archive period on ALL email, if it's needed for business purposes that is left up to the individual employee to make that call) as a matter of course and in the process documents are destroyed that are relevant to future litigation then the courts must demonstrate that you had some REASON TO SUSPECT they would be needed. In the case of both examples before neither party habitually got rid of documents (a doctor which destroys patient records isn't much of a doctor). Usually you draw a false distinction, in this case you are failing to make the distinction at all. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------