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Can a Document Retention Policy Actually Hurt Your Company?

While I have been a vocal proponent of Document Retention Policies since the implementation of the new rules on electronic discovery, my preaching has recently turned sotto voce. I still think DRPs are about the only way for a company to ensure compliance with the new Federal Rules of Civil Procedure, but witnessing the actual response of courts and juries to allegations of evidence destruction leaves me questioning whether DRPs are the best approach from a pragmatic standpoint. Based upon my obviously non-scientific, and clearly subjective, empirical evidence, it appears to me that not only are courts reticent to issue sanctions for admitted destruction of evidence (even after litigation has begun), but juries afford such allegations little weight.

Jurors are people. They work at companies where email is destroyed every day and no policy exists. Convincing them that the other side’s destruction of evidence is a violation of the Federal Rules of Evidence and evidence of wrongdoing sounds good in theory, but you are basically telling the jurors the things they do every day involves surreptitious wrongdoing. To convince them to follow your line of reasoning means convincing them they are wrong, deceptive, bad people. Obviously this is never an easy sell to a jury.

While judges are in the best position to sanction litigants for spoliation of critical evidence, I have yet to see it actually happen in a case in which I have been involved. This difference between what the law says and what the law does, makes it very difficult to recommend a company spend thousands of dollars and hundreds of hours implementing a document retention policy that may put it at a substantial disadvantage in court. Implementing a DRP is absolutely the “right” thing to do. I just wish judges and juries eventually make it the commercially viable thing to do as well.

Brett Trout

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