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April 17, 2017

Appellate Court Rejects Reliance on Document Retention Policy; Justifies Harsh Sanctions (Washington)


Appellate Court Rejects Reliance on Document Retention Policy; Justifies Harsh Sanctions (Washington)

Crews v. Avco Corp., 2015 WL 1541179 (Wash. Ct. App. Apr. 6, 2015).

In this wrongful death action, the plaintiffs sought discovery concerning the design and manufacture of a carburetor that was believed to be the cause of a plane crash, along with communications which would indicate the defendant’s knowledge of any malfunctions or defects prior to the crash. The trial court held the defendant in contempt for failing to comply with an order to compel such information. The defendant argued that certain types of documents were “retained only for fixed periods of time”, pursuant to its document retention policy, and further alleged that similar documents provided by another defendant were “beyond the various retention records” of that retention policy. The trial court held that the defendant’s “justification for nonproduction was insufficient” and the disregard of discovery orders was willful and prejudiced the plaintiffs. Thus, the trial court imposed harsh sanctions, striking all the defendant’s affirmative defenses. The defendant appealed, and the appeals court largely affirmed, while remanding the case for amendment of the final judgment to reflect any offsets authorized by statute. The appellate court specifically rejected the defendant’s reliance on its document retention policy, holding that the defendant “did not submit any other evidence, such as employee affidavits, about how the policy applied to the requested documents and their destruction” and that to conclude that the policy did cover the requested documents would require a “leap of faith.” The appellate court justified the harsh sanctions by stating that “although monetary sanctions could have compensated the plaintiff, they would not adequately punish, deter, or educate.”

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