not that familiar with the case. to access the links in the blog
posting use this link

http://shrinkster.com/17u6

Sent to you by pakurilecz via Google Reader: Court Trashes
Corporation’s Record Retention-Destruction Policy via Electronic Data
Records Law | How to Win E-Discovery by Benjamin Wright on 7/20/09

Phillip M. Adams & Associates v. Dell Inc.

Corporate record retention policies are taking a beating in court.

Conventional policy instructs employees to look at records on a
one-by-one basis and decide according to rational standards what to
keep and what to destroy. Conventional policy further provides that
when litigation arises, then a legal hold is applied – that is, record
destruction is suspended and relevant records are retained. Classic
records and information management (RIM) theory holds that if a
corporation follows such a conventional policy, then the corporation
should not be penalized in litigation for improper destruction of
records.

But the theory is not holding up. Over the past decade, legal
authorities have looked askance at record destruction policies.

At an emotional level, the attitude of authorities is, “What? You’re
telling me, big enterprise, that you don’t have any records . . .

on the topic of this lawsuit because you told your employees to destroy
records? Explain that to me. What is the urgency to destroy records in
this digital age? Maybe when records were paper an enterprise needed to
rid itself of records that occupy a lot of real estate and are hard to
search. But e-mail archives do not take up much physical space, and
they are amenable to automated search. I have a pointed question for
you, big enterprise: Did you as a matter of policy winnow down the
number of your records so that you could achieve a general advantage in
lawsuits?”

The legal system is unhappy with an enterprise that destroys records
for the purpose of positioning itself for future litigation, even
litigation that is not specifically anticipated. The system calls that
behavior spoliation.

Phillip M. Adams & Associates v. Dell Inc. is a striking case. It
sanctioned a company for destroying records for some years before the
lawsuit was filed or specifically threatened. The company's employees
destroyed records in accordance with the company's policy. The court
essentially felt the policy was unreasonable.

Some commentators think the court make a bad decision because it runs
counter to common business practice. They speculate the court suspected
bad faith on the company's part, but couldn’t specifically cite
evidence to support that suspicion.

Regardless of whether the court was right or wrong, the case is
consistent with a trend in 21st Century law: the legal system is
distrustful of early or aggressive record destruction. The legal system
is providing enterprises a growing basket of incentives to be more
generous in retaining records, especially email.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects. MA is sponsoring a
free July 29 webinar by Mr. Wright on e-records policy.

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