No, in fact, they would be in very big trouble.  The law is quite clear here.  An organization can not destroy any records that may prove relevant to a lawsuit regardless of their retention schedule.  This applies to lawsuits currently filed, as well as lawsuits that MAY be filed in the future.

In Mosaid Technologies v. Samsung Electronics the court held that “the defendant should be sanctioned even though it followed routine business practices because it had ‘willfully blinded’ itself to its duty to preserve relevant information.”

I suggest familiarizing yourself with these two recent landmark cases:  Rambus, Inc. v. Infineon Tech. AG, 220 F.R.D. 264 and Zubulake v. UBS Warburg LLC, 2004 WL 1620866.

Don
> From: "Nolene Sherman" <[log in to unmask]>
> Date: 2005/05/24 Tue PM 12:41:54 EDT
> To: "Don Lueders" <[log in to unmask]>
> Subject: RE:      Re: $640 Million Award Due to Bad Email Records Management
>
> OK, another clarification point... I understand that they are not off
> the hook as far as the lawsuit as a whole, but are they off the hook
> about not having that email, that is, no repercussions legal-wise for
> having destroyed it? Especially since the other side knew (or alleged)
> it existed and wanted it.
>
>
> Nolene
> * * * * * * * * * * * * * * * *
>
> -----Original Message-----
> From: Records Management Program [mailto:[log in to unmask]] On
> Behalf Of Don Lueders
> Sent: Tuesday, May 24, 2005 6:23 AM
> To: [log in to unmask]
> Subject: Re: $640 Million Award Due to Bad Email Records Management
>
> Nolene,
>
> You wrote:
> <How 'bout this scenario: Morgan Stanley had a program in place and had
> destroyed emails in the normal course of business. They get sued and
> produce all the relevant emails they have, but the one that the other
> side is looking for isn't there (destroyed, again, in the normal course
> of business). Is Morgan Stanly off the hook?>
>
> Not necessarily.  However, the plaintiff would have to prove Morgan
> Stanley's guilt some other way, which, in this particular case, would
> have been much more difficult.  Perelman may still have won, but there's
> little doubt the final award would be anywhere near $1.45 billion.
> (Don't forget he was willing to settle last year for a measly $20
> million!)
>

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance