Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lewy; On Remand, Court should examine validity of party’s document retention policy

Posted by rjbiii on August 10, 2008

On remand, if the trial court is called upon to again instruct the jury regarding failure to produce evidence, the court should consider the following factors before deciding whether to give the instruction to the jury. First, the court should determine whether [Producing Party’s] record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints.

Finally, the court should determine whether the document retention policy was instituted in bad faith.

Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. Mo. 1988 )

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