In Dorn-Kerri v. South West Cancer Care, Civ. No. 06cv1754, 2008 WL
3914458 (Aug. 18, 2008 S.D. Cal.), a federal magistrate judge for the Southern
District of California considered Dorn-Kerri's motion to compel the production
of certain aging reports from South West. In support of her discrimination and
wrongful termination claims, Dorn-Kerri specifically requested aging reports
that she had been asked to review in 2004 and 2005 while employed by South West.
As to the hardcopies of the reports, the Court found South West had met its
discovery obligations by establishing that South West's standard operating
procedures called for the destruction of aging reports after the accounts they
related to had been either "worked on" or paid, and that the relevant documents
had been destroyed by the time South West could reasonably anticipate this
litigation. As the hard copies of the reports were destroyed pursuant to South
West's document retention policies, Dorn-Kerri was limited to electronic
versions of the reports, if any existed. South West also satisfied the Court
that the 2004-2005 electronic versions of its aging reports were not capable of
being produced because the aging reports were constantly updated as new
information became available to the computer program that manages South West's
accounts. Thus, the Court denied Dorn-Kerri's motion to compel, the subject of
which formed a substantial part of her claim against South West.
The reminder from this case is that most, if not all, companies should adopt
and use an effective document retention and destruction protocol for both
hardcopy and electronic documents. It may end up being the key to defeating a
motion to compel. However, one of the issues not addressed in Dorn-Kerri
is that any protocol for the destruction of documents should be reasonable and
implemented in good faith. A finding that a particular protocol was created or
used to avoid discovery obligations could lead to severe sanctions from a court.
Accordingly, companies should seek the advice of counsel when crafting document
destruction and retention policies.