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Trustworthy Information Systems Handbook: Appendix E, I.A.

Destruction of Records/Spoliation: Destruction in General

In Armstrong v. Executive Office of the President, 1 F.3d 1274 (DC Cir 1993), a group of researchers and nonprofit organizations sought to prevent the deletion of e-mail records created during the Reagan administration, arguing that e-mail records should receive the same protection as paper—based records under the Federal Records Act (FRA). The DC Circuit agreed, holding that substantive e-mail communications are included in the FRA definition of "records" and so e-mail records, including transmittal information, should be stored. Often electronic records contain more information than their hard copy counterparts (such as multiple drafts in word processing). Machine-readable data contains original information that never existed in paper documents.

In Public Citizen v. Carlin, the Federal Court of Appeals overturned a lower court's holding that the federal government's General Record Schedule 20 (GRS 20) was invalid. GRS 20 governed the federal agencies' destruction and storage of certain electronic records. Specifically, the challenged portion of GRS 20 was the provision that authorized the disposal of word processing and electronic mail files that were copied to an agency record keeping system from a personal computer.

The lower court had held that GRS 20 exceeded the statutory authority because (1) it did not analyze the content of the records (it includes "program" records as well as "housekeeping" or administrative records); and (2) it did not set a specific time period for the retention of records before destruction (which is required by the statute). It also stated that hard-copy records are not satisfactory replacements for electronic records and may impair the research value of the records, since hard copies cannot be searched, manipulated, and indexed in the same way as electronic records, and are not as complete as electronic records (such as information about revisions).

The Court of Appeals held that the statute required a record to be scheduled according to the physical attributes of the record rather than its content. In addition, GRS 20 only authorizes disposal of records after they are copied into an agency record keeping system. There is no risk that the information will be lost to future users, since a record must first be copied before it can be destroyed under GRS 20. GRS 20 does not authorize the disposal of electronic records per se. The National Archivist still has to assess the "administrative, legal, research, or other value" of a record before authorizing its disposal. The Court also held that GRS 20 did state a time for disposal of records, which was after they have been transferred to a record keeping system. The Court of Appeals agreed with the lower court that electronic record keeping has advantages over paper record keeping, but acknowledges that not all agencies have established an electronic record keeping system and that the Archivist does not have to require every such agency to create an electronic record keeping system. Finally, the paper copies of electronic records will be complete, because GRS 20 required retention of hidden information or comments.

A defendant organization may seek to have a lawsuit dismissed for prejudice, if the plaintiff delayed in filing the lawsuit, and if before such filing the organization destroyed relevant records pursuant to its reasonable record retention policy. Minnesota courts are hesitant to impose sanctions for the destruction of documents prior to the initiation of litigation. Capellupo v. FMC Corp., 126 FRD 545 (D MN 1989). Courts in other states do not hesitate to impose such sanctions, however. For example, in Peskin v. Liberty Mutual Insurance Company (530 A.2d 822 (1987)), Peskin filed a claim for insurance coverage 9 ½ years after a fire. Liberty Mutual no longer possessed all the records necessary to establish the parameters of coverage. The records were destroyed by Liberty Mutual pursuant to its records destruction schedule before it received notice of the fire. The court remanded the case to determine whether Liberty Mutual's record retention policies comported with industry standards of practice and were otherwise reasonable.

The duty to preserve evidence starts when the litigant knows, or reasonably should know, that information is relevant in an action or reasonably calculated to lead to discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is subject of pending discovery request. (See Souza v. Fred Carries Contracts, Inc., 955 P2d 3 (AZ App Div 2 1997) and Fayemi v. Hambrecht and Quist, Inc., 174 FRD 319 (SDNY 1997)). For example, according to Hunter v. Ark Restaurants Corp., 3 F. Supp 2d 9 (DDC 1998), a court can dismiss a case for destruction of evidence when the litigant is on notice that documents are relevant to potential litigation and destroys such documents, depriving the party of the opportunity to present critical evidence on key claims. The obligation to preserve evidence even arises prior to the filing of a complaint where a party is on notice that litigation is likely to be commenced. Capellupo v. FMC Corp., 126 FRD at 550; Alliance to End Repression v. Rochford, 75 FRD 438 (ND IL 1976). If, however, there is no hint of litigation nor any other reason to retain certain documents, then a litigant's destruction of such documents does not warrant sanction or dismissal of the claim.

Each state has its own rules regarding destruction of evidence. For example, New York has a high standard for spoliation of evidence. Under its "Spoliator Beware" standard, the negligent, non-willful destruction of crucial and dispositive evidence in the sole possession of a party could bring severe sanctions of dismissal or summary judgment against the destroying party (even if the evidence was destroyed before a lawsuit was commenced). When a party alters, loses, or destroys key evidence before it can be examined by the other party's expert, the court has discretion as to sanctions. See Conderman v. Rochester Gas & Electric Corp., 687 NYS2d 213 (Supp 1998). In Conderman, there was an accident caused by certain telephone poles falling on a car. The defendant's risk management department sent an experienced team of claims personnel to the accident site, and they did not mark, identify, preserve or test the poles. The poles were thereafter destroyed, and the plaintiff claimed spoliation of evidence. The court held that New York has a strong public policy regarding the maintenance of key evidence in connection with a lawsuit. In this case, the immediate dispatch of experienced claims personnel showed that the defendant had a high degree of awareness of the likelihood of possible litigation, and supports a finding that crucial evidence was negligently destroyed.

A majority of states do not recognize a separate tort of spoliation of evidence, but limit the remedies for spoliation to the case at hand (such as Arizona in Souza v. Fred Carries Contracts, Inc., 955 P2d 3 (AZ App Div 2, 1997); and Texas in Trevino v. Ortega, 969 SW2d 950 (TX 1998). Courts in these states hold that spoliation does not give rise to independent damages, and is better remedied within the lawsuit affected by the spoliation. Spoliation is an evidentiary concept, not a separate cause of action; the destruction only becomes relevant when someone believes that those destroyed items are instrumental to success in a lawsuit. A minority of states, however, do recognize a separate tort of spoliation of evidence (California, Florida, New Jersey, New Mexico and Ohio).

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Appendix E


TIS Handbook last updated July 2002, Version 4.