Spoliation cites

[Jim Choate]

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.


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