james wrote:
If one keeps records, and suddenly someone sues one, and THEN one starts shredding, yes, then one can get into trouble. If however, one shreds away indiscriminately, on a routine and regular schedule, one is in the clear. As a remailer operator said to the courts "Sorry, I do not keep records".
Now if he had kept records, and then erased them on being summoned to the court, he would have had a problem. But because he erased them routinely, no problem.
If you read any of those cites and shep'd them, you will see there are circumstances where defendants didn't know the documents were relevant to a specific lawsuit. There is support for the words "SHOULD HAVE KNOWN" might NOT equivocate to: "a lawsuit has been filed." Nor even "expect a specific lawsuit." Furthermore, in Lewy, they did adhere to a destruction policy and plaintiffs got a jury instruction allowing for a negative inference. Does this tell you anything? Normally, you consider the following in a retention policy: o pending or threatened litigation = easy answer, keep it. o statute-specific retention requirements = easy answer.... o statutes of limitations = starts getting fuzzy here, usually the length of the relationship, plus the limitations periods.... o real estate = long time. o IP = forever. o email = most say a few weeks, unless it is a complaint, etc. It's not so simple as many think. It's document specific. ------- In certain cases, opponents may argue that the high-risk nature of certain enterprises amounts to a state of continual pending or threatened litigation, although non-specific in nature. They also may argue, as in Lewy, that destruction pursuant to a retention policy and normal business practice -- is not good enough. The court will look beyond the practice to ask if the policy is reasonable GIVEN THE PARTICULAR NATURE OF THE DOCUMENT AT ISSUE. The root of the matter is: SHOULD YOU HAVE KEPT IT? The court seemed to infer in Lewy that the nature of the business and the likelihood of litigation is a consideration. -------------------------------------------------------- Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998) -------------------------------------------------------- ..."We hold that there was sufficient evidence from which the jury could find that Remington knew the M700 was dangerous. The following evidence was before the jury: complaints from customers and gunsmiths that the Model 700 would fire upon release of safety, some of these complaints dating back as far as the early 1970s; .... .....Remington was unable to produce several documents that were destroyed pursuant to Remington's "record retention policy." Remington argues that destroying records pursuant to routine procedures does not provide an inference adverse to the party that destroyed the documents. Smith v. Uniroyal, Inc., 420 F.2d 438, 442-43 (7th Cir. 1970). The record reflects that Remington had its record retention policy in place as early as 1970. In addition, the records that have been destroyed pursuant to the policy -- complaints and gun examination reports -- were kept for a period of three years and if no action regarding a particular record was taken in that period it was destroyed. Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975) (records destroyed pursuant to regulations governing inactive records). ...First, the court should determine whether Remington's record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. ****************** ...Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints. ***************** [i.e., not just lawsuits - complaints. The court probably wanted to know if the defendant was on notice that this information would be sought in future NON-SPECIFIC litigation.] **************** Finally, the court should determine whether the document retention policy was instituted in bad faith. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) ("no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for."); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize, however, that the destruction of business records may be sufficient to raise an unfavorable inference."). In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. ************ For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Gumbs, 718 F.2d at 96 ("Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d Evidence ' 177 (1967)). ### In some high-risk endeavors, opponents may argue that destruction or purposeful non-retention = fraudulent intent. I don't think Remington REALLY wanted to keep those complaints 3 years, James. Ask yourself why they did even that. Look, we are just trying to envision what opponents are likely to try. The outcome will depend on the facts. Finally, the fact that a case (within the range of hypotheticals we have discussed) has not arisen is not dispositive on the issue. If that were the case, James, precedent would have no value, because the law could never move forward. Indeed, precedent, by it's very nature usually involves something novel. Otherwise, it wouldn't get to court, because everybody would know the answer.
You guys keep telling us we are not allowed to routinely purge records,
You keep speaking in absolutes. It's more complicated.
But if you routinely destroy records on the basis that all records of type Y more than X days old shall be destroyed, unless there is some specific reason for keeping them, routine, regularly scheduled erasure of logs, then you are not destroying them in specific anticipation of a lawsuit. You may well be destroying them in general anticipation of the general possibility of lawsuits, as Microsoft quite obviously is, as most companies quite obviously are, but Microsoft is not destroying them in specific anticipation of a specific lawsuit, so they are in the clear.
See above. ~Aimee