On 5/24/05, Don Lueders <[log in to unmask]> wrote:
> 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.
that is correct however there may be some grey area if the records
were destroyed in the ordinary everyday course of business while
following established procedures AND the organizations was not aware
of any pending litigation, investigations or audits.
>
> 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.
In both of these cases the defendants were well aware that litigation
was in in the offing, and yet they did not preserve the records. The
opinions issued during the Zubulake case apply only in the Southern
District of New York and nowhere else. An attorney can cite the case
in a brief in another case in another court, but that court does not
have to accept the reasoning. In fact the California Court of Appeals
(not sure on the correct title) said in a published opinion that the
Zubulake opinions (5 of them) do not apply in California state courts.
Rambus got into trouble because they initiated a records purge program
while litigation was in progress. (past RAIN postings contained
stories about this)
here are some links to articles about spoliation of evidence
http://www.iwancray.com/articles/edisc.pdf
www.iwancray.com/articles/Spoliation.doc
https://www.abanet.org/genpractice/newsletter/lawtrends/0501/litigation/ediscovery.html
as for the Mosaid v Samsung case one needs to read the entire history
of the case to understand where the judge is coming from with regards
to his opinion. here is a link to a Google search for the case
http://www.google.com/search?hl=en&lr=&safe=off&q=%22Mosaid+Techs.+Inc.+v.+Samsung+Elecs.+Co.%22&btnG=Searchhttp://shrinkster.com/5ho
Peterk
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