The Search for Nothing: How A Company's Document Destruction and Retention Protocol Defeated a Motion to Compel Dorn-Kerri v. South West Cancer Care

October 6, 2008

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.

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