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From:
"Roach, Bill" <[log in to unmask]>
Reply To:
Records Management Program <[log in to unmask]>
Date:
Thu, 7 May 2015 23:58:18 +0000
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Sorry, the question asked was whether anyone had been sanctioned by the court for the loss of records due to fire, flood, or other catastrophic loss.  The examples you provided below deal with an entirely different topic, spoliation.

 - Rambus	The party was sanctioned because they purposefully destroyed records when they had reason to believe litigation was "pending or reasonably forseeable."  The documents were shredded, not lost to a catastrophic loss.

 - Aldridge	The party was originally sanctioned for spoliation by the judge for destroying all but 8 minutes of a 2 hour security footage video.  The 8 minutes preserved dealt with the incident being litigated.  The Texas Supreme Court overturned the decision and said spoliation did not occur.  They found "no evidence of that Brookshire Brothers intentionally concealed or destroyed the security video footage."  The Supreme Court ruling found that the lower court ruling was incorrect.

There is a big difference between intentionally disposing of evidence when they are or may be subject to a legal matter and losing them because of unforeseen circumstances like fire or flood.

To the best of my knowledge, I have never see a case where a company has been sanctioned, chastised, or otherwise rebuked by a court for a catastrophic loss of records that occurred without any willful misconduct on the part of the party.  

While a company may not have the documentation it needs to defend itself or pursue and action, I find it very difficult to believe that an organization would be sanctioned for a loss if they had taken reasonable precautions to protect the materials.  

Bill Roach, CRM
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