Spoliation cites

[jamesd at echeque.com]

    --
Harmon Seaver
> > > > As others have stated, if you don't keep logs, or throw away all
> > > > your reciepts, there's not jack they can do about it.

At 7:22 PM -0700 8/2/01, Black Unicorn wrote:
> > > Uh, no.  And if you had been reading the many, many posts on this point
> > > you'd see that about every one of the 10-15 cases cited here
> > > say exactly the
> > > opposite of what you claim above.

James A. Donald:
> > A couple of posts ago Aimee confidently declared that none of the
> > people presenting themselves as lawyers on this list had made the
> > claim that you just made again.

On 4 Aug 2001, at 17:53, 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!"

That is the ordinary course of business at Microsoft, and most other well run companies.   If the chances are we do not need this record, get rid of it, for fear it may cause trouble in future, as Microsoft was so recently painfully reminded about email.

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.

This is well known existing practice and existing precedent. Everyone does it, the courts run into it every day, no one gets punished.   If you do not know that, you do not know shit from beans.

If you deny what I say, where is that executive who is doing time for routine regularly scheduled destruction of potentially inconvenient records?  Where is that remailer operator who is in trouble for not keeping logs?

> 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.

All documents and any documents might be relevant in future litigation, no document can be proven innocent, yet out here in the real world they all hit the shredder just the same.

Most people do it.  Most lawsuits are obstructed by it.  Where are the executives in jail?   Is Bill Gates going to jail in the current case because he now has his old email purged?

You guys keep telling us we are not allowed to routinely purge records, yet everyone is purging records, everyone has been purging records, no one is in trouble for it.  Where is the executive who is doing time for the routine regularly scheduled destruction of records and purging of email?

> 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,

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.

Shred away routine and indiscriminately, chuck everything into the shredder on a regular schedule, as part of a general policy aimed at getting rid of potentially dangerous records, no problem.  Shred specific records as part of a specific policy of defense against a specific lawsuit, that is a 
problem.

"Sorry, we do not keep such records" is a defense that is continually used and continually works.   One only gets into trouble if one destroyed certain particular records in response to a particular legal threat, if one chucked out certain problem records and not others, or one chucked out 
records in response to particular litigation.

James A. Donald:
> > She is backpeddling, because it has become obvious your claim is
> > nonsense, and the fact that you made it, (and perhaps she made it
> > also before denying that she or anyone else had made it) shows
> > you do not know shit from beans.

Aimee:
> No, Sandfort, Unicorn and I are in agreement.

Then you are ignorant twits.

Most people do it, courts continually run up against it, no one is in jail for it.

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         James A. Donald
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