Larry Medina wrote:
> Maybe our colleague Mr. Montana will weigh in on this
>
>
A lawyer might well raise an eyebrow and start asking questions over a
policy statement regarding accidental destruction of records or data.
However, if the lawyer found out that records or data were destroyed
accidentally in the absence of such a policy statement, he/she would
raise an eyebrow and start asking questions anyway. In both cases,
they'd be looking for the same thing -- evidence that "accidental"
wasn't really accidental and was instead cover for something else.
Generally speaking, they've got to prove more than accidental loss to
get sanctions -- they've got to prove that you intentionally destroyed
it with the intent to make it unavailable to them or another litigant.
So in either case, they'd be looking for some evidence that the accident
wasn't an accident; or in the case of the policy, some evidence that it
was promulgated with the intent to provide cover for non-accidental
accidents.
Generally speaking, in both cases (and in the absence of some smoking
gun), they'd be looking for the same sort of thing -- some pattern of
destruction that is suggestive of wrongful motive. So they'd be looking
at cases of "accidental" destruction and looking for patterns in the
data lost -- date ranges, topics and so on; and of course, they'd be
scouring email for any suggetsive language respecting incidents of
accidental loss.
What happens then depends on what they find. If there's enough there to
pitch it to the judge, they make a spoliation claim. Whether that flies
depends almost entrely upon how the judge sizes up their evidence.
Maybe they win, maybe they lose.
Bottom line, I don't think the policy necessarily either helps you or
hurts you, unless you're dumb enough to actually make a statement
somewhere that it's intended to keep evidence out of court, or dumb
enough to try to use it for that. Where the rubber meets the road is
when you have to explain incidents of accidental destruction or loss. A
credible, well documented explanation goes a long way toward avoiding
sanctions. To the extent that a policy or procedure promotes consistent
treatment and documentation of such incidents, it's a help.
But, and it's a big but . . . you'd have to be consistent in applying
it. What if you have such a policy, and it sometimes isn't used? Now
you've got some data losses treated per the policy, others not.
That's just the sort of inconsistency you were trying to avoid, and if
the other lawyers get wind of it, you can bet that they will certainly
attend to it. So now you're in a deposition and maybe a courtroom
having to explain why you use your accidental data loss policy sometimes
and don't use it other times, and the lawyers will have lots and lots of
questions about what was lost, and why and when, for all of the cases
not treated per the policy; and if there's any grounds at all, they'll
claim spoliation.
So, I think the bottom line is that you have to think through what it
says and how you intend to use it, because if you have it, it's another
thing you'll have to get right.
--
Best regards,
John
John Montaņa
Montaņa & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
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www.montana-associates.com
twitter: @johncmontana
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