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

Destruction of Records/Spoliation: Inefficient Record Keeping System:
Unable to Locate Records

An organization may face liability if it creates a record keeping and indexing system that makes it difficult or costly to locate and produce documents on request. For example, in Kozlowski v. Sears (73 FRD 73, 1976), the plaintiff was burned when pajamas manufactured and marketed by the defendant ignited. The plaintiff asked for a record of all complaints and communications concerning personal injuries or death allegedly caused by the burning of children's nightwear manufactured or marketed by the defendant. The defendant refused to produce such documents, stating that there is no practical way for anyone to determine whether there are any such records, because it has a longstanding practice of indexing claims alphabetically by name of applicant, rather than by type of product. The court stated that the defendant may not excuse itself from compliance with the discovery request because it "utilizes a system of record keeping which conceals rather than discloses relevant records or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purpose of the discovery rules." See also Continental Illinois National Bank & Trust Company of Chicago v. Caton, 136 FRD 682 (D KS 1991); Baine v. General Motors Corp., 141 FRD 328 (MD AL 1991); Fagan v. District of Columbia, 136 FRD 5 (DDC 1991); Control Data Corporation Securities Litigation, 1988 WL 92085, Fed Sec L Rep 93,720 (D MN 1988); Bowman v. Consolidated Rail Corp., 110 FRD 525 (ND Ind 1986); US v. ACB Sales & Service, Inc. 95 FRD 316 (1982); Dunn v. Midwestern Indemnity, 99 FRD 191 (SD OH 1980); Webb v. Westinghouse Electric Corp., 81 FRD 431 (ED PA 1978).

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Appendix E

TIS Handbook last updated July 2002, Version 4.