September 25, 2015 Top Story

Document Retention Policy Is No Excuse for Discovery Noncompliance

"Death penalty" discovery sanctions issued for repeated contempt of discovery orders

Angela Foster

Vaguely worded document retention policies are no defense against “death penalty” sanctions for repeated disobedience of discovery orders. The court in Crews v. Avco upheld a death penalty sanctions order that deemed all of the plaintiffs’ claims admitted and struck all of the defendant’s affirmative defenses. The court emphasized that lesser sanctions were insufficient to cure the prejudice to the plaintiffs resulting from the defendant’s noncompliance with discovery orders. The case serves as a reminder that retention policies provide a safe harbor in only limited circumstances where documents have been destroyed prior to a duty to preserve.

The Discovery Dispute

Several people were killed in a plane crash in the Cascade Mountains in Washington. The decedents’ heirs filed a wrongful death suit against multiple defendants, including Avco Corporation, which manufactured and sold the engine. The plane crash allegedly resulted from Precision Automotive Corporation’s installation of a new defective carburetor float. The plaintiffs alleged that Avco failed to warn of defects in the carburetor float in the engine that caused the crash.

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