Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Such notice can be provided by the institution of litigation or when litigation is reasonably anticipated. If a court finds that a document was improperly destroyed, a range of possible remedies or sanctions may be imposed. Such a finding may lead a court to draw adverse inferences, impose discovery sanctions, bar evidence, reallocate burdens of persuasion, strike pleadings, enter default judgements, or award costs, attorneys fees, or damages. Thus, although periodic document destruction systems may have certain logistical advantages, they should be implemented only after careful consideration of applicable restraints and possible consequences when relevant evidence is destroyed.
Special considerations arise for attorneys concerning the destruction of documents.
Because of applicable ethical rules and their roles as officers of the courts, counsel must carefully consider the particular circumstances and applicable ethical considerations before rendering advice concerning the destruction of documents. Ensure that required certifications have been made and are accurate. Train employees who have safety and health responsibilities on how to draft documents that accomplish their safety and health purpose without raising unnecessary liability flags. Respond to all negative documentation. Do not leave complaints or conditions unresolved.